Jefferson v. Jefferson , 219 N.C. 333 ( 1941 )

Seawell, J.

The first question for decision is whether the deed of D. A. Jefferson conveys to his son, R. O. Jefferson, an estate in fee or an estate for life only, with remainder to his “boy children.”

It will be noted that in the conveying clause the grant is to “R. O. Jefferson heirs and assigns,” and in the habendum' clause we have “to the said R. 0. Jefferson and his heirs and not to assign only to his brothers for their only use and behoof forever,” and the warranty is made “to the said R. O. Jefferson and his heirs and assigns.” While it does not appear in the evidence, it seems probable that the draftsman used some printed form which he endeavored to adapt to the purpose of the parties, with such changes as seemed suitable.

Tbe portion of the habendum clause which, restrains any assignment except to the brothers of the grantee is equally consistent with the assignment of the life estate as with an assignment of the fee, and it throws little light upon a proper construction of the deed.

Defendant’s counsel strenuously contend that we must confine ourselves to the more formal parts of the deed as controlling interpretation, and for reasons mostly technical, arising from the frequent use of the word “heirs,” as above stated, it is insisted that the effect is to convey to the grantee R. O. Jefferson an estate in fee simple. But we feel impelled to consider, as expressive of a different intent, the clause written into the instrument between the conveying and the habendum clauses: “This deed is conveyed to the said grantee to him his lifetime and then to his boy children.” This provision cannot be regarded as a mere interpretative expression of the grantor as to the effect of his deed. It is an essential part of the instrument and, standing alone, would be sufficient to convey the lands in the manner and with the effect indicated. It must, therefore, be compared, and if possible reconciled, with other parts of the deed, in order to give effect to its intention, as construed from its four corners.

It is obvious that if we are guided only by other parts of the deed which, because of the use of the word “heirs” would carry to the grantee the estate in fee, we should have to ignore entirely the mention of the grantee’s life estate, the direct reference to the boy children, and the remainder which the grantor desired them to have, and, in fact, would be compelled to strike the whole clause from the deed, no matter how prominently the grantor thrusts it upon our attention. This, we think, would be to ignore a part of the deed which in comparison with the more formal technical expressions used elsewhere might be considered the clearest expression of intent to be found in the instrument, and explanatory of its seemingly contradictory expressions. Even if we should consider some repugnancy to exist, it is still our duty to construe the deed upon consideration of all its parts in such a way as to give effect to that which we find to be its true intent. Triplett v. Williams, 149 N. C., 394, 63 S. E., 79; Midgett v. Meekins, 160 N. C., 42, 75 S. E., 728; Gold Mining Co. v. Lumber Co., 170 N. C., 273, 87 S. E., 40; In re Dixon, 156 N. C., 26, 72 S. E., 71. See annotations to Triplett v. Williams, supra, p. 399.

Amongst the technicalities discarded in the modern rules of interpretation, as pointed out in Triplett v. Williams, supra, and cases following, is the artificial importance given to clauses in the deed, the labels they bear, and the order in which they occur. Even those technical words which, under the common law and by virtue of long use have come to designate the particular kind of an estate conveyed, nothing else appearing, must give way to clearer expressions of intent if they are found in other parts of the instrument. In that case we find expressions pointedly applicable to the present case. With reference to the use of the word “heirs,” we find: “All conveyances of land executed since the passage of the act” (Act of 1879, C. S., 991) “are to be taken 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. It is the legislative will that the intention of the grantor and not the technical words of the common law shall govern. . . . The insertion of the word ‘heirs’ in the premises was evidently in deference to an established formula and creates, in our opinion, no repugnance between the granting clause and the habendum, inasmuch as the same estate would pass to the plaintiff whether this word he inserted or omitted.” We apprehend that the same principle applies here, although the expression of intent occurs elsewhere than in the habendum.

In Jones v. Whichard, 163 N. C., 241 (246), 79 S. E., 503, Justice HoTce, speaking for the Court, said: “In Triplett v. Williams, supra, this Court, in a well sustained opinion by Associate Justice Brown, announced the decision that although a deed in its terms professed to convey an estate to a grantee and its heirs, it would not have the effect of conveying a fee simple when it clearly appeared from the habendum or other portions of the instrument that it was the intent to convey only a life estate.” Italics supplied.

We hold that the effect of the deed from D. A. Jefferson to R. 0. Jefferson was to convey to R. 0. Jefferson an estate for life only, with remainder in fee to his “boy children.” 0. S., 991.

Under the rule favoring early vestment of estates, and since one of the boy children, Nolan Jefferson, was in esse at the time the deed was made, the remainder immediately vested in him, subject to be opened up, however, to admit the after-born children mentioned in the evidence. Powell v. Powell, 168 N. C., 561, 84 S. E., 860; Waller v. Brown, 197 N. C., 508, 149 S. E., 687; Poe v. Journegan, 175 N. C., 261, 95 S. E., 495. Consulting the chronology of births and deaths above given, we find that, in accordance with the statute of descents, the interests of the children who were born and who died subsequently to the making of the deed, devolved upon the plaintiff, C. D. Jefferson, and Nolan Jefferson.

It follows that the deed of R. O. Jefferson to the defendant conveyed only his life estate in the property, which has terminated by the death of the grantor. The defendant derives his title from Nolan Jefferson, and thereby acquired a one-half undivided interest in the lands, which he holds as cotenant with the plaintiff.

In view of the conclusion we have reached, it becomes unnecessary to discuss the evidence relating to the alleged mistake of the draftsman of the D. A. Jefferson deed, or the exceptions based thereupon, since we are convinced that the trial judge committed no error in his instruction to the jury on the bar of the statute of limitation. The other instructions were free from error.

In the trial, we find

No error.