Edwards v. Butler , 244 N.C. 205 ( 1956 )

92 S.E.2d 922 (1956) 244 N.C. 205

Eugene EDWARDS; Lois E. Shaw and her husband, Ralph Shaw; Joseph E. Edwards and wife, Dorothy Edwards; Virginia E. Townsend and husband, Grover C. Townsend; Annie E. Rich and husband, Ed Rich,
v.
Clifton Lee BUTLER, infant; Kirby Lee Butler, infant; Betty Edwards, infant; Dewey Edwards, infant; Vinton C. Edwards and wife, Gladys Edwards; Jettie Mae Ward and husband, Barney O. Ward; Beachie Hill and husband, Robert Hill; James L. Edwards and wife, Thelma Edwards.

No. 594.

Supreme Court of North Carolina.

May 23, 1956.

H. H. Clark, Edward B. Clark, Elizabethtown, for petitioners.

Frank T. Grady, Elizabethtown, for infant respondents.

Leon D. Smith, Elizabethtown, for adult respondents.

DENNY, Justice.

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 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. 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 contain 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.

The second question presented for determination is whether the court below committed error in holding that only the children of Joseph G. Edwards who were living at the time the deed under consideration was executed and delivered, had an interest in the land described therein.

A grant of land directly to the children of a living person conveys the title only to those who are living at the time of the execution of the deed, including a child then en ventre sa mere, it being necessary to the validity of the deed that there should be a grantee as well as a grantor and a thing granted. But where there is a reservation of a life estate in the grantor or another, with limitation over to the children at the death of the life tenant, all the children who are alive at the termination of the life estate, whether born before or after the execution of the deed, take thereunder. Dupree v. Dupree, 45 N.C. 164, 59 Am. St. Rep. 590; Powell v. Powell, 168 N.C. 561, 84 S.E. 860; Johnson Bros. v. Lee, 187 N.C. 753, 122 S.E. 839; Waller v. Brown, 197 N.C. 508, 149 S.E. 687; Jefferson v. Jefferson, 219 N.C. 333, 13 S.E.2d 745; Beam v. Gilkey, 225 N.C. 520, 35 S.E.2d 641; Mackie v. Mackie, 230 N.C. 152, 52 S.E.2d 352.

In light of our decisions, it is clear that all the children of Joseph G. Edwards who were living at the death of Lilly Mae Edwards, the holder of the life estate, own an interest in the premises involved, and the court was in error in excluding James L. Edwards, who was born after the execution and delivery of the deed creating the life estate in his mother. He was living when the life estate terminated and was, therefore, entitled to take under the provisions of the deed in question. Powell v. Powell, supra; Waller v. Brown, supra; Mackie v. Mackie, supra.

The petitioners and infant respondents have no interest in the premises involved in this litigation since they were not in being when the life estate terminated and the identity of the grantor's children had to be ascertained by a calling of the roll.

It will be noted that James L. Edwards did not appeal from the judgment entered below. Even so, the proceeding is one in rem, and the judgment entered vitally affects the title to real estate. Consequently, for the purpose of correcting the error in the judgment, the Court invokes its supervisory power and ex mero motu makes the correction. North Carolina Constitution, Article IV, section 8; G.S. § 7-11; Ange v. Ange, 235 N.C. 506, 71 S.E.2d 19; Duke v. Campbell, 233 N.C. 262, 63 S.E.2d 555; Gibson v. Central Mfgs' Mut. Insurance Co., 232 N.C. 712, 62 S.E.2d 320; State v. Cochran, 230 N.C. 523, 53 S.E.2d 663; Armand Mining Co. v. Gambrill & Melville Mills Co., 181 N.C. 361, 107 S.E. 216, 217.

In the last cited case, Chief Justice Clark said: "Although the plaintiff has not appealed it is proper that the court should render such judgment as ``upon an inspection of the whole record ought in law to be rendered.' C.S. § 1412 and notes thereto [now G.S. § 7-11]."

Therefore, the judgment of the court below is modified so as to include as owners of the land involved herein the four children of Joseph G. Edwards who were living at the death of the life tenant, Lilly Mae Edwards.

Modified and affirmed.

DEVIN, J., took no part in the consideration or decision of this case.