Lewis W. FRYE and wife, Virginia Frye
v.
William W. ARRINGTON and wife, Lillian P. Arrington; Edward T. Arrington and wife, Louise Arrington; Lessie Arrington, single; Mary A. Davis and husband, Donald Davis; William A. Taylor and wife, Carol Taylor; Edgar H. Taylor and wife, Charlene N. Taylor; and Lillian T. Piner and husband, John Piner.
No. 813SC1076.
Court of Appeals of North Carolina.
July 6, 1982.*773 Nelson W. Taylor, III, Morehead City, for plaintiffs appellants.
Wheatly, Wheatly & Nobles, by John E. Nobles, Jr., Beaufort, for defendants appellees.
VAUGHN, Judge.
Summary judgment is proper only when there is no genuine issue as to any material fact and one party is entitled to judgment as a matter of law. Brenner v. School House, Ltd., 302 N.C. 207, 274 S.E.2d 206 (1981). In the present action, both parties are in agreement as to the facts. The controversy centers on the construction to be given the reservation found in the description and the habendum. Plaintiffs argue that the reservation is void for repugnancy with the grant in fee simple. We disagree.
At the outset, we note that G.S. 39-1.1 is inapplicable to the present action. In construing deeds executed prior to 1 January 1968, courts must look to common law rules. Whetsell v. Jernigan, 291 N.C. 128, 229 S.E.2d 183 (1976). At common law, the granting clause was the essence of the contract. Artis v. Artis, 228 N.C. 754, 760, 47 S.E.2d 228, 232 (1948). Therefore, when there was an inconsistency between the granting clause and the habendum, and the intent of the grantor was unclear, the granting clause controlled. Seawell v. Hall, 185 N.C. 80, 116 S.E. 189 (1923); Triplett v. Williams, 149 N.C. 394, 63 S.E. 79 (1908).
Courts further held, however, that technical rules of construction were not to be strictly applied if to do so would defeat the obvious intent of the grantor. E.g., Bryant v. Shields, 220 N.C. 628, 631, 18 S.E.2d 157, 159 (1942); Elliott v. Jefferson, 133 N.C. 207, 214-16, 45 S.E. 558, 561 (1903). Common law recognized that in some situations the habendum would prevail:
"[I]t is suggested as an elementary maxim that when there are repugnant clauses in a deed the first will control and the last will be rejected, but in ... other cases, it is held that this principle must be subordinated to the doctrine heretofore stated, that the intent of the parties as embodied in the entire instrument is the end to be attained, and that a subsequent clause may be rejected as repugnant or irreconcilable only after subjecting the instrument to this controlling principle of construction. [Citations omitted]. Having regard to this principle, we must likewise give effect to another of equal importance, which is this: the office of the habendum being to lessen, enlarge, explain, or qualify the estate granted in the premises, the granting clause and the habendum must be construed together, and any apparent inconsistency reconciled, if possible, because the habendum may control where it clearly manifests the grantor's intention. `It may be formulated as a rule that where it is impossible to determine from the deed and surrounding circumstances that the grantor intended the habendum to control, the granting words will govern, but if it clearly appears that it was the intention of the grantor to enlarge or restrict the granting clause by the habendum, the latter must control.' 1 Devlin on Deeds, sec. 215 [Citations omitted]."
Seawell v. Hall, 185 N.C. at 83, 116 S.E. at 191; Triplett v. Williams, supra.
*774 In the 1946 deed, it is obvious that Mary Arrington's intent was not to convey oil, gas and mineral rights. A reservation of those rights is found in language following the description as well as in the habendum. We must determine whether the habendum and granting clause can be construed together to effectuate the grantor's intent.
Plaintiffs argue that the two clauses are irreconcilable. If the deed had expressly granted mineral rights to North Carolina Pulp Company, we would agree. A recognized canon of construction is that the habendum cannot divest an estate already vested by the granting clause. E.g., Triplett v. Williams, 149 N.C. at 395, 63 S.E. at 79.
Here, however, the reservation follows a grant by general description. The Supreme Court has held that similar reservations of timber rights are valid. See Hardison v. Lilley, 238 N.C. 309, 78 S.E.2d 111 (1953); Mining Co. v. Cotton Mills, 143 N.C. 307, 55 S.E. 700 (1906). In Hardison v. Lilley, supra, the Court explained: "[T]he reservation and exception relate only to the quantum of the property described, and not to the quality of the estate conveyed, and are therefore not repugnant to the fee simple estate in that which was conveyed...." 238 N.C. at 311, 78 S.E.2d at 112. See also Singleton v. School Dist. No. 34, 10 S.W. 793 (Ky.1889).
The reservation of mineral rights in the 1946 deed can likewise be explained without destroying the grant. Ordinarily, a general grant is sufficient to convey minerals in and under the surface of the described land. Mineral rights, however, may be severed from surface rights. Vance v. Pritchard, 213 N.C. 552, 197 S.E. 182 (1938). When Mary Arrington reserved unto herself an estate in fee in the minerals, she necessarily reduced the quantity of the estate conveyed to the land's surface. The reservation, however, had no effect on the fee she conveyed to North Carolina Pulp Company in that surface. Accord Associated Oil Co. v. Hart, 277 S.W. 1043 (Tex.1925).
In summary, where it is clearly the intention of the grantor to limit or explain the granting clause by the habendum, the latter, according to common law, will control. Here, the habendum contains a reservation which can be read as limiting the fee conveyed to a fee in the surface of the lands described. This construction reconciles any apparent inconsistency between the granting clause and habendum, and is in line with the grantor's clear intent. We, therefore, conclude that the court properly held, as a matter of law, that the Mary Arrington deed reserves all oil, gas and mineral rights in and under the surface of the conveyed lands unto Mary Arrington and her heirs.
The court's order entering summary judgment in favor of defendants is affirmed.
Affirmed.
HARRY C. MARTIN and HILL, JJ., concur.