Jefferson v. Jefferson

Stacy, O. J.,

dissenting: It was said in Triplett v. Williams, 149 N. C., 394, 63 S. E., 79, that “all conveyances of land executed since the passage of the Act (ch. 148, Laws 1879, now C. S., 991) are to be taken to be in fee simple, unless the intent of the grantor is plainly manifest in some part of the instrument to convey an estate of less dignity.”

Here, we have a deed with all of its operative provisions conveying an estate in fee simple. Whitley v. Arenson, ante, 121. Following the description of the land conveyed are these words: “This deed is conveyed to the said grantee to him his lifetime and then to his boy children.” In the granting clause, however, which precedes this expression, and twice thereafter (1) in the habendum and (2) in the warranty, the grantor uses words of inheritance to make known the character of the estate conveyed. Can it be said, therefore, that “such conveyance in plain and express words shows, or it is plainly intended by the conveyance or some part thereof, that the grantor meant to convey an estate of less dignity”? C. S., 991. I think not.

Conceding that the significance of a deed, like that of a will, is to be gathered from its four corners, Triplett v. Williams, supra, it is not to be overlooked that the four corners are to be ascertained from.the language used in the instrument. Brown v. Brown, 168 N. C., 4, 84 S. E., 25; McIver v. McKinney, 184 N. C., 393, 114 S. E., 399; Heyer v. Bulluck, 210 N. C., 321, 186 S. E., 356. We must not pass by the crucial expressions employed by the grantor. If we do, we shall make the deed rather than interpret it. McCallum v. McCallum, 167 N. C., 310, 83 S. E., 250. “When language is used having a clearly defined legal signification, there is no room for construction to ascertain the intent; it must be given its legal meaning and effect.” Campbell v. Cronly, 150 N. C., 457, 64 S. E., 213.

In some respects, the case resembles Wilkins v. Norman, 139 N. C., 39, 51 S. E., 797. There, in the granting clause, and in the habendum, the conveyance is to “Berrick Norman, to him, his heirs and assigns forever.” Following the usual covenant of warranty is a clause undertaking to limit the estate to the life of the grantee and his wife, with remainder to three of “their heirs,” naming them. This latter clause was held to be repugnant to the estate already conveyed, and was disregarded. To like effect is the decision in Blackwell v. Blackwell, 124 N. C.. 269, 32 S. E., 676.

*341Perhaps the nearest ease in support of a different interpretation is that of Willis v. Trust Co., 183 N. C., 267, 111 S. E., 166. But there, in the warranty, was a limitation over in case the grantee should die without issue or bodily heirs living at the time of her death. Here, we have no such limitation over in any part of the deed.

The sentence following the description does not purport to lessen or to qualify the estate originally granted. Its language is purely interpretative. But even if it be regarded as expressive of the grantor’s intent, it is at variance with the formal provisions of the deed fixing the quality of the estate as a fee. The intention to convey a fee simple, thrice expressed, and favored by the law, is not overborne by this sentence. Bagwell v. Hines, 187 N. C., 690, 122 S. E., 659; Johnson v. Lee, 187 N. C., 753, 122 S. E., 839.

The grantor understood, and so provided in the habendum, that the grantee would have the right to convey the property absolutely and in fee simple to his brothers. The grantee did convey it to his brother, 0. M. Jefferson, in 1914, with full covenants of warranty, and 0. M. Jefferson has been in possession of it ever since. "Without objection, the draftsman of the deed testified as follows: “My father told me that he wanted R. 0. Jefferson’s boy children to have this land after R. O. Jefferson’s death if he died before he had opportunity to sell, before he made conveyance to one of his brothers. . . . The deed represents that to the best of my knowledge.” So, unless the clear purpose of the grantor is to be defeated, the deed in question must be held to convey an estate in fee simple. The voiding of the partial restraint on alienation is apparently upon the assumption that it is annexed to a grant in fee. Combs v. Paul, 191 N. C., 789, 133 S. E., 93; Wool v. Fleetwood, 136 N. C., 460, 48 S. E., 785; Williams v. McPherson, 216 N. C., 565, 5 S. E. (2d), 830. Compare Greene v. Stadiem, 198 N. C., 445, 152 S. E., 398.

Moreover, if the interest conveyed be construed to he a life estate with power in the grantee, as expressed in the habendum, to sell to his brothers in fee, and the life tenant has sold to one of his brothers, does not this give the purchaser a fee? Smith v. Mears, 218 N. C., 193, 10 S. E. (2d), 659; Chewning v. Mason, 158 N. C., 578, 74 S. E., 357.

My vote is for a reversal of the judgment below.

Barnhill and Winborne, JJ., concur in this opinion.