The object of this bill is to set up a deed alleged to have been made to the plaintiff by his uncle, John Kea. The instrument was exhibited with and annexed to the bill as a part of it. It is in these words:
"This indenture, made this 3 April, 1830, between John Kea of the first part and James Edwin Kea, son of Kinchen Kea, of the second part, witnesseth: That the said John Kea, after all my just debts are paid, as well for and in consideration of the natural love and affection which he hath and beareth to the said James Edwin Kea, his nephew, as also for the better maintenance and preferment of the said James Edwin, hath given, granted aliened, enfeoffed, and confirmed, and by these presents doth give, grant, alien, enfeoff, and confirm unto the said James Edwin all that messuage or tenement, with all and singular its appurtenances, and all houses, outhouses, lands, negroes, stock of horses, cattle, sheep and hogs, and notes and money, remainder and (374) remainders, rents and services of the said premises, and all the estate, right, title interest, property, claim and demand whatsoever of him the said John Kea of and in and to the said messuage or tenement land and premises, and of, in and to every part and parcel thereof, with the appurtenances, and all deeds, evidences, and writings concerning the said premises only now in the hands or custody of the said John Kea, of which he may get or come by without suit in law: to have and to hold the said messuage or tenement, lands and premises hereby given and granted unto the said James Edwin, his heirs and assigns, to the only proper use and behoof of him the said James Edwin, his heirs and assigns, at my death. And the said John Kea for himself, his heirs and executors, doth covenant and grant to and with the said *Page 261 James Edwin, his heirs and assigns, by these presents, that he, the said James Edwin, his heirs and assigns, shall and lawfully may inherit the above mentioned property or properties at my decease, peaceably and quietly have, hold, occupy, possess, and enjoy the said messuage, tenement, lands, hereditaments, and premises hereby given and granted or mentioned or intended so to be, with their appurtenances, free, clear, and discharged of and from all former and other gifts, grants, bargains and sales, feoffments, jointures, dowers, estates, entails, rents, charges, arrearages of rents, and of and from all other titles, troubles, and encumbrances whatever, had, made, committed, done or suffered, or to be had, made, committed, done or suffered by him, the said John Kea, his heirs, executors, or any other person or persons lawfully claiming, or persons lawfully claiming or to claim by, from, or under him, them or any or either of them. In witness whereof I have hereunto set my hand and seal. And I hereby make and ordain my loving brother, William Kea, and my friends, William Jones and John B. Brown, guardians for the said James Kea." It was signed and sealed by John Kea, and attested by three witnesses, and appears to have been canceled by crossing with a pen the name of the maker, John Kea, so as (375) nearly to obliterate, but still to leave it legible with care.
The bill alleges that this instrument was written by John A. Robeson and was executed by John Kea as his act and deed, on the day of its date, for the purpose of advancing the plaintiff, who was his nephew, and at that time about 9 years old; the said John Kea being then advanced in life and without issue and never having been married. The bill further states that the deed was immediately delivered by Kea, the maker, to his intimate friend, William Jones, one of the persons therein named a guardian of the plaintiff. John Kea died in 1833, and shortly afterwards the defendant John A. Robeson and the said William Jones produced a paper in the handwriting of the said Jones purporting to be the will of John Kea, bearing date 8 May, 1832, and to appoint the said Robeson and Jones the executors thereof, and to devise and bequeath the whole of his estate, real and personal, to David G. Robeson and Andrew J. Jones, infant sons of the two executors; and they also then produced the deed to the plaintiff, canceled in the manner mentioned above, and stated that they had found it in that condition among the papers of John Kea at his death. The alleged will was not attested, and so did not pass real estate; but it was offered for probate as a will of personalty, and after opposition from the next of kin — of whom the plaintiff was not one — it was established, and letters testamentary issued to the said executors, and they took into their possession divers slaves and other chattels, and divided them between the two legatees already mentioned. *Page 262
The bill states that by the deed John Kea conveyed or intended to convey to the plaintiff all his estate, at the death of the uncle, and that the plaintiff then became justly entitled to all the land and the (376) slaves, with the other property mentioned in the deed; that the plaintiff was, however, unable to assert his right at law, by reason that the deed was canceled or obliterated as aforesaid before it was registered, and could not in its present state be registered. The bill then charges that John A. Robeson and William Jones, or one of them, fraudulently canceled the deed, in order to divest or defeat the title of the plaintiff and vest the same in their own sons; and it insists that the cancellation, whether done by those persons or any other, cannot defeat the plaintiff's title, as the instrument had taken effect by the execution and delivery of it, as a deed for the benefit of the plaintiff.
The bill further states that, at the filing of the bill, there were forty-two of the slaves, and a list of their names is given in a schedule annexed to the bill, and it alleges that the said slaves were owned by John Kea at his death, or are descendants of such.
William Jones died intestate, and administration of his estate was granted to Josiah Maultsby. The bill was filed in February, 1841, against John A. Robeson, David G. Robeson, Andrew J. Jones, and Josiah Maultsby; and the prayer is that the deed to the plaintiff may be declared to have been duly executed and delivered for the benefit of the plaintiff, and that it had been unduly and wrongfully canceled or mutilated, and that it may be set up as a proper conveyance, and that the defendants may be decreed to convey to the plaintiff the said slaves, and any others, if any, which John Kea left at his death, as well as any other personal property so left by him; and that the defendants might discover whether the forty-two slaves were not the property of John Kea at his death, or the descendants of such, and what others there were or other chattels, and come to an account for the hire and profits, and for general relief.
(377) The answers admit that the instrument was written by the defendant John A. Robeson, and that John Kea executed it by signing and sealing it and having it attested; but they deny that he delivered it to William Jones or any other person for the benefit of the plaintiff or for any other purpose, or that it was canceled by John A. Robeson and William Jones, or either of them, or with their or his privity. They state that in fact John Kea never delivered nor intended to deliver it to any person, and that he intended it to be testamentary in its nature, and that after he executed it, he, John Kea, kept it in his own possession, that he might always have it under his control. The answers further state that, after John Kea's death, John A. Robeson and William Jones, as the executors named in his will, took possession *Page 263 of his effects and papers, and that they then found among the papers of the deceased this instrument, canceled by obliterating the name of the maker, as it now appears; and that the defendants have been credibly informed by other persons, and they believe, that John Kea, himself, thus canceled it almost immediately after its execution. The parties have taken voluminous proofs upon the questions of fact on which they are at issue, in respect to the delivery of the alleged deed and its cancellation. It is a subject of regret that the cause cannot be determined on its merits as, on those proofs, they seem to the Court to be. If the plaintiff's uncle had the instrument prepared, and executed and delivered it, as alleged in the bill, there would be little doubt that if he did not convey, he intended to convey, his estates to the plaintiff, and it must be the wish of every one that such intention should not fail by reason of deficiencies in the instrument which the law will not allow the Court to supply.
Could the decision be made on the matters of fact, it might, in (378) a case of the nature and magnitude of the present, be the duty of the Court to arrange and handle the evidence in detail. But it is unnecessary, if it would not be, in some degree, improper, to go into it on this occasion, as the instrument appears to the Court to be in itself so vague and uncertain that the plaintiff must fail, however clear his proofs might be of its formal execution.
Courts are always desirous of giving effect to instruments according to the intention of the parties, as far as the law will allow. It is so just and reasonable that it should be so that it has long grown into a maxim that favorable constructions are to be put on deeds: benigne faciendae suntinterpretationes chartarum, ut res magis valeat quam pereat. Hence, words, when it can be seen that the parties have so used them, may be received in a sense different from that which is proper to them; and the different parts of the instrument may be transposed in order to carry out the intent. Yet instruments are not unfrequently brought under adjudication which are so repugnant or uncertain that they cannot be upheld. The degree of uncertainty which shall vitiate a deed, it is admitted, must be such that the meaning cannot be ascertained: who, for example, are the contracting parties, or what thing is the subject of the contract. An effort is to be made to give some meaning to the deed, if possible. If, however, there be such an uncertainty as one of those supposed, the instrument of necessity must fail; for, to give a deed any sensible operation, it must describe the subject-matter of the conveyance so as to denote upon the instrument what it is in particular, or by a *Page 264 reference to something else which will render it certain. The want of such a description or reference in this deed is a defect which renders it totally inoperative.
It purports to give "all that messuage and tenement, with (379) all and singular its appurtenances, and all houses, outhouses, lands, negroes, stock of horses, cattle, sheep and hogs, and notes and money, remainder and remainders, rents and services of the saidpremises, and all the estates, right, title, interest, property claim and demand whatsoever of him, the said John Kea, of, in, and to thesaid messuage or tenement, lands and premises, and of, in, and to every part and parcel thereof, with the appurtenances." If one is asked,what messuage and tenement is that meant, or what are the lands, or which are the negroes, stock or horses, etc., described and intended to be passed by this deed, the answer must be, there are none in certainty, nor are there any means of rendering them certain. The deed professes, for example, to convey"that messuage," but without going on to describe or in any manner designate the messuage; it leaves, as it were, a blank. The parties could have filled it up, but the Court has no power to do so. The same uncertainty exists as to the negroes and other articles of personalty mentioned. The deed does not describe a negro by name or in any other manner. If there had been a reference to those then owned by the maker, it would have been sufficient. But it only says "negroes" at large, as it speaks of the messuage and lands and houses. The plaintiff does not even construe it as conveying the land or negroes which John Kea owned at its date; for the bill does not state that he owned any land or a single slave at the date of the deed. Indeed, it claims the particular negroes set forth in the schedule annexed to it as belonging to the plaintiff under the deed, because they belonged to Kea at his death or are their descendants. It was argued, indeed, that the subjects of the conveyance, namely, the lands, negroes, stock of horses, etc., are identified as those owned by John Kea at the making of the deed by the words preceding the clause of habendum, "now in (380) the hands of (or) custody of the said John Kea." But the argument cannot possibly be supported. It is directly opposed to the claim of the bill, just mentioned, which, however, is only material as it shows that even the plaintiff could not read the deed in that sense. But the construction is in itself altogether wrong. Those words do not at all refer to the lands, negroes, etc., previously mentioned, as descriptive of such lands and negroes, etc., and intended to certify them, but solely to the "deeds, evidences, and witnesses concerning the said premises only," which immediately precede the expressions, "now in the hands or custody of the said John Kea, or which he may get or come by without suit in law." This is a familiar provision in the precedents of deeds, and it means simply *Page 265 that the maker of the deed intends to pass all the title papers which concern the estate by the deed conveyed, and that only, provided he then has the title papers or can get them without the trouble or expense of a lawsuit; but that if the deed and other writings concern any other land than the premises thereby conveyed, then the grantor does not mean to pass them, but to keep them for his own use and protection. The term "only" after "premises" demonstrates this to be the sense of the clause, and it is made doubly sure by the subsequent words, "which he may come by without suit" — showing that the whole clause has only the title papers in its purview. That is the natural construction from the structure of the sentence and applying the relative to the next antecedent. It is true, as has been already said, that the law does not insist very strenuously on grammar, on the due order of the provisions of a deed, but will, if need be, transpose sentences to give some efficacy to the deed. But that cannot be done unless there be something in the instrument which shows that reading the deed as it is will defeat the intention, and that by transposing words or sentences or leaving out parts, the deed will be rendered effectual in the manner intended by the parties, though badly expressed. When parts of the deed are transposed, (381) it is because the sense requires it; and it can never be done against the sense. A provision relative to one subject cannot be torn from that subject and applied to another, in order to give a different meaning to the instrument. It is only when it can be plainly seen that kindred provisions are unskillfully separated that they can be brought together in order to effect the construction. Here nothing like that can be seen. The clause under consideration is appropriately expressed, as applied to the title papers, and cannot be misunderstood. It is obviously copied, as well as other formal parts of the deed, from some printed precedent by an ignorant person who did not know how to fit it to a particular case. The precedent, of course, did not describe any land in particular, but left that blank, and the copy was made exactly, both in its words and its blanks, where negroes, houses, etc., and the appointment of guardians are awkwardly introduced. To carry back this clause respecting the title papers (which is perfectly intelligible and proper where it stands) so as to make it qualify the description of the subjects of the conveyance in the former parts of the deed would do violence to the obvious sense of the provision and defeat, instead of effecting, the intent of the parties in that clause. The truth is, that the deed is for "land and negroes" at large, and so vague as not to be susceptible of a construction which will fit anything in particular to it, and, therefore, it did not convey anything, and the plaintiff has sustained no loss by its being canceled.
PER CURIAM. Bill dismissed with costs. *Page 266 Cited: Cobb v. Hines, 44 N.C. 347; Institute v. Norwood, 45 N.C. 69;Sharpe v. Pearce, 74 N.C. 602; Harrell v. Butler, 92 N.C. 23; Rowlandv. Rowland, 93 N.C. 218; Blow v. Vaughan, 105 N.C. 208; Gudger v.White, 141 N.C. 514; Beacom v. Amos, 161 N.C. 365; Ipock v. Gaskins,ib., 679; Brown v. Brown, 168 N.C. 10; Weil v. Davis, ib., 303; MiningCo. v. Lumber Co., 170 N.C. 276.
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