Roy OXENDINE (Original Plaintiff), William L. Oxendine, Adm'r of Roy Oxendine, Deceased; William L. Oxendine and Wife, Lou Henry Lowry Oxendine, James W. Oxendine and Wife, Louise Smith Oxendine (Additional Plaintiffs),
v.
H. S. LEWIS (Original Defendant), Gertrude Mitchell Hunt and Husband, Graddy Hunt, James Mitchell and Wife, Margaret Mitchell, Addie Mae Mitchell Barnes and Husband, Cleveland Barnes, Cletus Mitchell Pulos and Husband, George Pulos, Earl Ray Mitchell and Wife, Lena Belle Mitchell, Bearl David Mitchell and Wife, Marilyn Mitchell, Vardell Oxendine and Wife, Helen Oxendine, James Cleo Freeman, Unmarried, and Lena Mae Freeman, Unmarried, and W. H. Humphrey, Jr., Guardian ad litem for James Cleo Freeman and Lena Mae Freeman, Minors (Additional Defendants).
No. 738.
Supreme Court of North Carolina.
June 10, 1960.*708 Johnson & Biggs, by E. M. Johnson, Lumberton, for plaintiffs, appellees.
Britt, Campbell & Britt, by David M. Britt, Fairmont, for additional defendants, appellants.
W. H. Humphrey, Jr., Lumberton, for original defendant, appellant, and guardian ad litem for James Cleo Freeman and Lena Mae Freeman, Minors, defendants, appellants.
PARKER, Justice.
A former appeal in this case, wherein Roy Oxendine was plaintiff and H. S. Lewis was defendant, is reported in 251 N.C. 702, 111 S.E.2d 870, and was remanded for additional parties. Since the former appeal, Roy Oxendine has died. In the former appeal, and in parts of the record the christian name of Malinda Oxendine Hunt is set forth as Melinda. We use here Malinda *709 as it appears in the photostatic copy of the deed.
The granting clause in the Roy Oxendine deed conveys to Malinda Oxendine Hunt an unqualified fee-simple estate. The habendum clause contains no limitation on the fee thus conveyed, and a fee-simple title is warranted in the covenants of title.
Jeffries v. Parker, 236 N.C. 756, 73 S.E.2d 783, 784, was a suit to enforce specific performance of a contract to purchase land. These are the facts in that suit: On 21 January 1919, Mary J. Jeffries conveyed land to E. Worth Jeffries and James H. Jeffries by recorded deed. The granting clause in the deed conveyed an unqualified fee and the habendum clause contains no limitation on the fee thus conveyed and a fee-simple title is warranted in the covenants of title. The paragraph describing the land conveyed contains the following at the end and as a part thereof: "It is understood that in case of the death of James H. Jeffries before he otherwise disposes of his part of this land, that his share is to be the property of E. Worth Jeffries in fee simple, subject to the dower right of James H. Jeffries' wife, Mandy Jeffries." Mandy Jeffries predeceased James H. Jeffries. On 21 March 1942, James H. Jeffries died intestate, leaving surviving certain collateral heirs. At the time of his death he had not disposed of or conveyed his interest in said land. The trial court held that the deed "vested in James H. Jeffries a defeasible fee subjected to be defeated upon his having not disposed of same prior to his death and in which event the said title vested in the survivor, E. Worth Jeffries, and the said E. Worth Jeffries now holds an absolute fee simple title to the said property," and decreed specific performance. This Court reversed the judgment below, saying: "When the granting clause in a deed to real property conveys an unqualified fee and the habendum contains no limitation on the fee thus conveyed and a fee simple title is warranted in the covenants of title, any additional clause or provision repugnant thereto and not by reference made a part thereof, inserted in the instrument as a part of, or following the description of the property conveyed, or elsewhere other than in the granting or habendum clause, which tends to delimit the estate thus conveyed, will be deemed mere surplusage without force or effect. Artis v. Artis, 228 N.C. 754, 47 S.E.2d 228, and cases cited; Kennedy v. Kennedy, 236 N.C. 419, 72 S.E.2d 869; Whitley v. Arenson, 219 N.C. 121, 12 S.E.2d 906; McNeill v. Blevins, 222 N.C. 170, 22 S.E.2d 268. This is now settled law in this jurisdiction. Krites v. Plott, 222 N.C. 679, 24 S.E.2d 531, and Jefferson v. Jefferson, 219 N.C. 333, 13 S.E.2d 745, to the extent they conflict with this conclusion, have been overruled."
The relevant facts for our decision here in Edwards v. Butler, 244 N.C. 205, 92 S.E.2d 922, 923, are: On 19 January 1912, Joseph G. Edwards executed a warranty deed to his wife "Lilly Mae Edwards, her lifetime and then to my children * * *," conveying the premises described in the petition. The granting clause, the habendum and the warranty in the deed are in the usual form and fully sufficient to pass a fee-simple title. Following the description of the land, the grantor inserted the following: "It is known and understood that I, Joseph G. Edwards, hereby except my life estate in the above conveyed premises." In its opinion, this Court said: "The first question to be determined is whether or not the attempted reservation of a life estate in the grantor in the deed from Joseph G. Edwards to Lilly Mae Edwards, his wife, was valid. We have repeatedly held that when the granting clause, the habendum, and the warranty in a deed are clear and unambiguous and fully sufficient to pass immediately a fee simple estate to the grantee or grantees, that a paragraph inserted between the description and the habendum, in which the grantor seeks to reserve a life estate in himself or another, or to otherwise limit the estate conveyed, will be rejected as repugnant to the estate *710 and interest therein conveyed. Whitson v. Barnett, 237 N.C. 483, 75 S.E.2d 391; Jeffries v. Parker, 236 N.C. 756, 73 S.E.2d 783; Kennedy v. Kennedy, 236 N.C. 419, 72 S.E.2d 869; Swaim v. Swaim, 235 N.C. 277, 69 S.E.2d 534; Pilley v. Smith, 230 N.C. 62, 51 S.E.2d 923; Artis v. Artis, 228 N.C. 754, 47 S.E.2d 228. In the deed under consideration, the words in the granting clause, the habendum, and warranty are clear and unambiguous and are sufficient to pass immediately a fee simple title to the land described therein. These portions of the deed contained nothing that might even suggest an intention on the part of the grantor to convey an estate of less dignity than a fee simple, indefeasible title to the premises described therein, subject to the life estate of his wife. Hence, we hold that the attempt of the grantor to create a life estate in himself by the method used was ineffective and will be rejected as mere surplusage. Jeffries v. Parker, supra."
In McCotter v. Barnes, 247 N.C. 480, 101 S.E.2d 330, 332, a printed form deed was used with written words inserted. The granting clause in the deed conveys an unqualified fee-simple estate. The habendum clause places no limitation on the estate conveyed by the granting clause. A fee-simple estate is warranted in the covenants of title. The description in writing inserted in the deed is: "A right of way 100 feet wide (To be located by said party of second part and when so located to become a part of this description) across the home-stead tract. The said location to be through the southwest corner of said tract of land. There shall be no building other than for railroad use." The defendants contended that the use of the term "right of way" in the description limits the conveyance to an easement. The Court said: "But in any event, under application of the rule of construction that the granting clause will prevail in case of repugnancy, the term `right of way' as here used in the description must yield to the granting clause in fee, and especially so in view of the fact that the granting clause harmonizes with the habendum and with the covenants of seizin and warranty. Artis v. Artis, 228 N.C. 754, 47 S.E.2d 228; Jeffries v. Parker, 236 N.C. 756, 73 S.E.2d 783; Griffin v. Springer, 244 N.C. 95, 92 S.E.2d 682; Edwards v. Butler, 244 N.C. 205, 92 S.E.2d 922. In Artis v. Artis, supra, 228 N.C. at page 761, 47 S.E.2d at page 232, it is stated: `Hence it may be stated as a rule of law that where the entire estate in fee simple, in unmistakable terms, is given the grantee in a deed, both in the granting clause and habendum, the warranty being in harmony therewith, other clauses in the deed, repugnant to the estate and interest conveyed, will be rejected.' Here the fact that the description was inserted in a form deed is without controlling significance. Jeffries v. Parker, supra."
Shephard v. Horton, 188 N.C. 787, 125 S.E. 539, is clearly distinguishable. The granting clause of the deed was "to the said party of the second part during her natural life andheirs and assigns," a tract of land describing it. The habendum clause reads, "To have and to hold the aforesaid tract or parcel of land during her natural life with, and all privileges and appurtenances thereto belonging to the said Victory Horton,heirs and assigns to her only use and behoof forever." A fee-simple title is warranted in the covenants of title. The deed was written on a printed blank form prepared for general use and the words "during her natural life" were written by the draftsman. In the deed in that case the written words and the printed words in the granting clause and in the habendum are inconsistent, and it was held that the written words "during her natural life" controlled the construction, and that the grantee took a life estate.
The words in the deed in the instant case, apparently written in with a typewriter, appearing before and after the description of the land conveyed in fee simple and which tend to delimit the fee-simple estate conveyed are not in the granting or habendum *711 clause, and under a long line of our decisions as above set forth will be deemed surplusage without force or effect.
Malinda Oxendine Hunt took a fee-simple estate under the deed. Defendants' assignments of error to the Judge's conclusions of law and to the judgment are sustained. The judgment below is
Reversed.
BOBBITT, Justice (dissenting).
The deed is from a son to his mother. Obviously, the conveyance of a life estate was intended. This intention should control unless "in conflict with some unyielding canon of construction, or settled rule of property, or fixed rule of law, or is repugnant to the terms of the grant." Griffin v. Springer, 244 N.C. 95, 98, 92 S.E.2d 682, 684, and cases cited. In my opinion, the rules of law enunciated in the cases cited in the Court's opinion do not require that the intention of the parties be thwarted.
"The heart of a deed is the granting clause." Griffin v. Springer, supra, and cases cited. The granting clause designates the grantee and the thing granted. Artis v. Artis, 228 N.C. 754, 760, 47 S.E.2d 228. Consideration of the granting clause requires the construction that the thing granted is not a described tract of land but "a life estate in and to the following described tract of land." The factual situation is distinguishable from cases where, after conveyance of a described tract of land in fee, a subsequent provision, not an integral part of the granting clause, purports to delimit the fee theretofore explicitly conveyed.
A rule of law which supersedes and frustrates the intention of the parties should not be extended to encompass the present factual situation but should be restricted to factual situations undistinguishable from those heretofore considered.
RODMAN, J., joins in dissent.