Oxendine v. Lewis , 252 N.C. 669 ( 1960 )

PaeiceR, J.

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 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, 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 andi not by reference made a part thereof, inserted in the instrument as a part of, or following the description of the property conveyed, or eleswhere 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; 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, 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 axe 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. 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 diignity 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, 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 homestead 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, at p. 761, 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 and — heirs 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 any 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 dieed 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 clause, and under a long line of our decisions as above set forth will be deemed surplus-age 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.