#### R. Q. BROWN and wife v. R. B. SOUTHERLAND and wife.

(Filed 30 October, 1907).

1. Deeds and Conveyances — Mistake of Draftsman — Construction-— “All Our Interests” — Warranty, Breach of.

A conveyance of “all interest in tbe land of H. O. Smith, deceased, as divided by committee,” conveys only such interest as tbe grantors bad therein, as so divided, and a breach of covenant or warranty therein contained as to other lands of said Smith embraced by the draftsman by mistake, described by metes and bounds, concerning which the grantors neither had nor claimed title, will not lie.

2. Same — Instructions—Interpretation.

Plaintiffs are not entitled to have the question submitted to the jury as to fraud in a deed, without having requested such by proper instructions, and when there is no error by the court below in interpreting the deed as a question of law, in the light of admissions.

*332Civil, ACTION, tried before Jones, J., and a jury, at January Term, 1907, of the Superior Court of Wayne County.

Erom judgment for defendants the plaintiffs appealed.

The pleadings and admissions disclose this case: Spiars Smith died seized of a tract of land which descended to his five children, one of whom is the feme defendant, and another II. C. Smith. The land was partitioned and a lot of 70 acres, described by metes and bounds, allotted to feme defendant. The share of H. 0. Smith was allotted in two tracts — one of 47 acres lying south of the feme defendant’s tract, and one of 15% acres lying north thereof. Thereafter, said IT. C. Smith died intestate, whereupon his share was partitioned among his surviving brothers and sisters, 20 acres of the 47-acre lot being allotted to feme.defendant. On 6 July, 1900, feme defendant and her husband contracted to sell the share allotted her in the Spiars Smith and in the IT. C. Smith land to the plaintiffs, and, pursuant thereto, gave to 'Mr. Hill the plat showing the first partition by which tO' draw the deed. He described the 7 0-acre tract by metes and bounds, and proceeded to describe the interest in the IT. C. Smith land as follows : “Second Tract: All interest in the land of H. C. Smith, deceased, as divided by committee, first on the north side of the first tract, said to contain about 5% acres. Third Tract: All interest in the land of IT. 0. Smith, deceased, south of the first tract of 70 acres and said to contain about 20 acres, more or less, or being the interest of section No. 1, as platted by John M. Caldwell in November, 1887.”

Mr. Hill did not have before him the plat showing partition of IT. 0. Smith land. There is no tract of 5% acres. This action is brought to recover damages for breach of the covenant of seizin and warranty contained in the deed from defendants to plaintiffs. It is conceded that plaintiffs got, under the description in the deed, all of the interest of defendants in the Spiars Smith and the IT. C. Smith land. His Honor, upon the pleadings and admissions, was of the opinion *333that tbe deed, construed in connection witb tbe admitted facts and tbe evidence of plaintiffs, did not purport to convey anything but tbe interest of tbe defendants in tbe Spiars Smith and H. C. Smith land. He rendered judgment for defendants. Plaintiffs excepted and appealed.

IF. 0. Mimroe for plaintiffs.

F. B. Cooper for defendants.

OoNNoe, J.,

after stating tbe facts: Tbe case seems to have been tried upon tbe pleadings and admissions. Neither party tendered any issues, and, of course, no prayers for instructions. It is manifest that tbe defendants only intended to convey, and plaintiffs to buy, tbe interest of tbe defendants in tbe Smith land. It is equally clear bow tbe draftsman fell into tbe error of supposing, in tbe absence of any plat showing partition of tbe H. 0. Smith land, that such interest extended to both tbe 47-acre and tbe 15 %-acre'tracts; whereas tbe defendants bad no interest in tbe last-named tract. It is equally clear that tbe controlling thought of tbe grantors was tbe conveyance of their interest in the LI. 0. Smith land “as divided by tbe committee.” If there bad been no division, tbe deed would have conveyed only tbe undivided interest, and not any specified number of acres; hence, the mention of tbe number of acres only indicated tbe extent of tbe interest. If "tbe number of acres is controlling, tbe plaintiffs got more than they were entitled to in tbe 47-acre tract. If this was tbe basis upon which tbe contract price was fixed, plaintiffs have 90 acres, whereas they would have bad but 86 acres. If it was “an undivided interest” which they were buying, they got “the interest” of tbe grantors in tbe land of IL. 0. Smith as divided by tbe committee, which is all that tbe deed purported to convey. Hence they show no breach of tbe warranty.

We think that bis Honor’s view was correct, and that, reading tbe entire description in tbe light of tbe admissions, tbe *334deed conveys all that the parties intended to grant or plaintiffs were entitled to receive. Plaintiffs suggest that they were entitled to have the question whether there was a mistake in the deed submitted to the jury. It does not appear that any request was made to his Honor to do so. We are of the opinion that his Honor correctly interpreted the deed. The judgment should be

Affirmed.