dissenting: I am unable to concur in the conclusion reached by the Court in this case. If nothing more was involved than a small sum of money I would be content •to note my dissent and say no more; but, as I interpret the record, a gross moral fraud is by the verdict of the jury fixed upon the defendant — a corporation, it is true, but corporations commit frauds only by their agents and servants. It is impossible to disassociate them. I, of course, accept as true the allegation in the complaint, and every statement made by plaintiff and his witness, in regard to the terms of the option, and the contract upon which it is founded. I also accept as true his testimony in regard to the declarations and conduct of defendant’s agent when he presented the deed for plain*228tiff’s signature. I am, however, of the opinion that, instead of speaking a willful, deliberate falsehood in regard to the timber conveyed in the deed, he spoke the exact truth — that the deed, properly construed in the light of the option, conveys no other and no more timber than is included in the option. . I freely concede that, if I am in error in this, and if the agent, who, it seems, did not take the' option or draw the deed, knew that it included more and other -timber than the option called for, he was guilty of a gross fraud upon the plaintiff. It is so easy to charge men with fraud, and, unfortunately, we are so prone to take the accusation for the proof, that courts should be cautious to see that conduct capable of more than one construction should not be hastily or upon insufficient evidence branded as fraudulent when it may be consistent with an honest mistake. The complaint sets out the terms of the option, and in that respect it is fully sustained by the testimony. The option was for “the pine, cypress and poplar timber in the swamp and ravines, up as far as muck and mire comes, consisting of about seven acres, on the land known as the Iiarmon-Modlin land, on the eastern side of the Washington and Jamesville Noad and the south side of Oooper Swamp.” The charge is that defendant “willfully and wickedly contrived to defraud plaintiff,” and “fraudulently and purposely” inserted in the deed other timber, to-wit, “oak and ash,” on the swamp and ravine, and “pine, oak, ash, cypress and poplar” on the highland, etc.
Plaintiff introduces Mr. Hardison, who says: “I took an option on the swamp and ravine timber. * * * The plaintiff had other timber than swamp and ravine: I did not buy the timber on the highland.” Plaintiff testifies: “I gave him (Mr. Hardison) an option on the SAvamp timber, as far up as the muck and mire goes. I did not sell him any highland timber. He was to cut timber down to twelve inches in diameter at the stump on the swamp and ravine.” The deed contains the following description: “All the pine, *229oak, ash, cypress and poplar timber, of and above the size of twelve inches in diameter on the stump when cut, in and upon the following described tracts of land, situated in Jamesville Township, in the aforesaid county of Martin, adjoining the lands of S. L. Wallace, Id. M. Modlin and others, and known as the Ilarmon-Modlin tract, containing forty-two acres, more or less; all the pine, poplar, cypress timber on said land, on the southern side of Cooper Swamp and in said swamp and ravines; being the land conveyed to said Modlin, as per record of Martin County, by deed dated 18 February, 1898.” It bears date 18 November, 1899, and is recorded 19 December, 1899. No timber has been cut, and defendant has never claimed, but expressly disclaims, any other timber than that included in the option. Its contention is thus stated in the record: “The defendant contends that the deed to it did not convey any timber except that in the swamp and ravines.” Thus the issue is sharply presented. ' Plaintiff charges that defendant fraudulently included all of his timber in the deed, whereas defendant disclaims ever taking, owning or acquiring the timber on the highland. The controversy, so far as the quantity of timber is concerned, depends upon the construction of the deed. It will be noted that, although the plaintiff alleges that defendant fraudulently inserted in, the deed “oak and ash” in “the swamp and ravine,” the deed conveys only “pine, poplar and cypress,” the exact language of the option. The controversy is, therefore, narrowed to the question whether, reading the deed in the light of the option, any other timber is conveyed than that on the “southern side of Cooper Swamp and in said swamp and ravines.” His Honor construed the deed to convey all of the timber on the Harmon-Modlin land, thus giving no effect to the last restrictive words in the description. ' I take it as settled that courts, in such cases, will, for the purpose of ascertaining the intention of the parties, “endeavor to place themselves in the position of the parties at the time of the *230conveyance.” Cox v. McGowan, 116 N. C., 131. We should read this deed as if thfe description referred to the option. The question which the Court is to ask in such cases is thus, clearly stated by Judge Walker, in Gudger v. White, 141 N. C., 507: “After all, the simple question is, what does the whole description show was actually intended to be conveyed ? When reading the deed and looking at the facts and circumstances as they appear, what impression is left on the mind as to the purpose of the parties ?” “When a general description is joined with a particular one, it is a rule of construction that the latter prevails over the former. A general description may be limited, restrained or controlled by a particular description, but, as a rule, a particular description is' not limited, restrained or controlled by a general description. The real intent of the parties should, when possible, be gathered from the whole description.” Jones on Conv., sec. 410. It is sometimes said that the first description will control a later one. This rule is, however, applied only when the question as to which conveys the intention is so exactly balanced that it is necessary to invoke it “to .tip the nodding beam.” “But, whether a specific description comes before or after a general description, ' it must prevail, upon the underlying principle that the law will always demand the production of the highest evidence, and, as between two descriptions, will prefer that which is most certain.” Cox v. McGowan, supra. In Carter v. White, 101 N. C., 30, the grant described the land as “a tract containing sixty-seven and a half acres, lying and being in the county of Currituck, known by the name of Walker’s Island, beginning,” etc. These words were followed by a specific description, which did not include the whole of Walker’s Island. Smith, G. J., said: “While the words recited, unconnected with others, will embrace a water-bound tract as an island, yet, upon every well-settled rule of interpretation, subsequent restrictive words giving and defining its boundaries must have the effect of qualifying the pre*231ceding general designation. Tbe island determines, as does tbe mention of tbe county, tbe locality of tbe land granted; tbe particular description, wbat portion is intended; and tbus tbe general and true intent is reached and an apparent repug-nancy avoided and tbe deed rendered self-consistent.” Tbe learned Chief Justice says tbat tbe proposition is so manifest that be refrains from citing authority for its support. In Peebles v. Graham, 128 N. C., 218, tbe testator, under whom both parties claimed, gave plaintiff “all tbe lands included under tbe name of tbe Arnold, tbe Geer and tbe Jones lands— all east of tbe Ealeigb and Eoxboro Eoad.” Furches, G. J said: “If tbe description bad closed with all tbe lands included, * * * and tbe dispute bad been whether tbe 64y2 acres were a part of tbe ‘Arnold’ land, it would have been proper for tbe Court to submit tbat question to tbe jury. But tbe description did not stop here; it added ‘all east of tbe Ealeigb and Eoxboro Eoad.’ This qualification must mean something. It would not have been added if it did not. Tbe description, without this qualifying clause, would undoubtedly have given the plaintiff all tbe Arnold tract. * * * As (to) this language, according to all rules of interpretation, tbe only meaning it can have is to restrict tbe gift to tbe east side of tbe road.” Proctor v. Pool, 15 N. C., 371. In these cases tbe Court bad no facts and circumstances aliunde tbe deed to aid it; whereas we have tbe option pursuant to which tbe deed was drawn. Tbe option includes “pine, cypress and poplar timber”; tbe specific description in tbe deed is confined to “pine, cypress and poplar timber.” Tbe option calls for the timber “in tbe swamp and ravines” — the exact words of tbe deed. Tbe option confines tbe timber sold to tbe “Harmon-Modlin land on the eastern side of tbe Washington and Jamesville Eoad, on tbe south side of Cooper Swamp.” Tbe deed confines tbe grant 'to tbe timber on tbe “south side of. Cooper Swamp.” No point is made of tbe omission to insert tbe road. But it is said tbat tbe words *232“up as far as the muck and mire comes” are omitted. No reference is made in the complaint to this omission. The only complaint made of the description as to the land on the “south side of Cooper Swamp, in the swamp and ravines,” is that the deed includes “oak and ash,” whereas the option includes only “pine, cypress and poplar”; and when tire deed is read it appears that “oak and ash” are not in it. I fail, after careful inspection, to find any evidence suggesting that plaintiff was claiming any damage for fraud as to the swamp and ravine timber. Ilis action is for the value of the timber on the highland. It is conceded that no timber has been cut. There is no suggestion that defendant, or its grantee, has ever claimed to own the highland timber; on the contrary, defendant expressly disclaims such ownership. I think that his Honor was in error when he held, as a matter of law, that the deed conveyed all of the timber on the Modlin land. There is not the slightest evidence that Jordan, or any one else, ever made any such claim. While it is conceded that defendant did not request his Honor to submit the question of the intention of the jDarties to the jury, it did except to his instruction that, as a matter of law, the language of the deed included all of the timber. If the question was for the jury, I think the exception extends to all errors in the charge in that respect. If the description was ambiguous and obscure, it would seem clear that the question as to what was included in the deed, in the light of the “facts and circumstances,” should have been submitted to the jury. Ward v. Gay, 131 N. C., 397. It is said that defendant conveyed the timber to the Dennis-Sim-rnons Lumber Company by deed, containing the same description as is found in the deed from plaintiff. There is no' suggestion that the lumber company has ever claimed that the highland timber passed, although eight years have elapsed since plaintiff’s deed was made. I confess to some difficulty in comprehending how a person, either natural or corporate, can be fixed with actual intentional fraud in respect to prop*233erty wbicb it does not claim to own, bas never asserted any right to, and when, after eight years from the date of the 'alleged fraud, it is first notified that any such construction is put upon the deed, promptly disclaims title to the property. The defendant is made to buy property, at plaintiff’s price, which it does not want, has never purchased or claimed to own, and, for the purpose of compelling the purchase, is fixed with a gross, wicked fraud. It is made to pay interest for eight years. The deed was recorded immediately. It will' be further observed that, although the defendant’s grantee, by the judgment, is compelled to take the timber, it is given only two years within which to remove it. If it be not removed within that time, the plaintiff receives $290, with interest for eight years, and retains his timber. Bunch v. Lumber Co., 134 N. C., 116, and other cases in which we have held that, at the expiration of the time fixed for removal, the estate of the purchaser revests in the vendor. Assuming that ten years was inserted instead of five for removal, the difference in the price is fixed by the testimony. This amount, easy of calculation, plaintiff would recover. It may not be improper to say that, upon the argument, the attorney who wrote the deed — a man utterly incapable of committing a fraud — had the original deed, showing that a portion of the description was printed, thus explaining how the ambiguity occurred— the written words constitute the specific description. I think that, in any aspect of the case, there should be a new trial, to the end that the rights of all parties may be adjudged and protected.