Ellis v. Barnes

57 S.E.2d 772 (1950) 231 N.C. 543

ELLIS et al.
v.
BARNES.

No. 99.

Supreme Court of North Carolina.

March 8, 1950.

Lamb & Lamb, Wilson, for plaintiffs.

Thomas J. Moore, Wilson, for defendant.

DENNY, Justice.

In the interpretation of the provisions of a deed, the intention of the grantor must be gathered from the whole instrument and every part thereof given effect, unless it contains conflicting provisions which are irreconcilable, or a provision which is contrary to public policy or runs counter to some rule of law. Willis v. Mutual Loan & Trust Co., 183 N.C. 267, 111 S.E. 163; Springs v. Hopkins, 171 N.C. 486, 88 S.E. 774.

There is no conflict or repugnancy between the granting and habendum clauses in the deed under consideration, which prevents giving full force and effect to the intent of the grantor as expressed in the habendum clause of the deed.

In the case of Bryant v. Shields, 220 N.C. 628, 18 S.E.2d 157, 159, Devin, J., in speaking for the Court, said: "The usual office of the habendum in a deed is to define the extent of the ownership in the thing granted to be held and enjoyed by the grantee (26 C.J.S., Deeds, §§ 22, 129, pages 200, 431); to lessen, enlarge, explain or qualify the estate granted in the premises (Seawell v. Hall [supra], 185 N.C. 80, 116 S.E. 189); but not to contradict or to be repugnant to the estate granted therein (Bryan v. Eason, 147 N.C. 284, 61 S.E. 71), though the habendum clause may control if it clearly appears the grantor so intended. Seawell v. Hall, supra; 84 A.L.R. 1050." Cf. Pilley v. Smith, 230 N.C. 62, 51 S.E.2d 923.

It is well settled that while a stranger to the premises may not be introduced in the habendum to take as a grantee, he may take by way of remainder. Bryant v. Shields, supra, and cited cases.

The language used by Pollie Ellis in the habendum of her deed should be considered in light of the statutory requirement contained in G.S. § 41-6, which reads as follows: "A limitation by deed, will, or other writing, to the heirs of a living person, shall be construed to be to the children of such person, unless a contrary intention appear by the deed or will."

It would seem, therefore, that "the living heirs of Pollie Ellis", must be interpreted to mean the children of Pollie Ellis. This being so, the legal effect of the habendum clause is simply this: To G. H. Ellis for and during his natural life and at his death to his surviving issue. But if he die without issue surviving, then to the surviving children of Pollie Ellis. It follows, therefore, that the living children of Pollie Ellis (and, according to appellant's brief, there are several of them) have an interest in the premises as contingent remaindermen. Thompson v. Batts, 168 N. C. 333, 84 S.E. 347.

It is apparent that in the case of Therrell v. Clanton, 210 N.C. 391, 186 S.E. 483, 484, the Court regarded "right heirs of Mary E. Parker" as her general heirs and not as her children, which under the common law rule created a reversion by operation of law. 33 Am.Jur., Sec. 195, p. 669. To construe the opinion otherwise, would seem to require the conclusion that the Court simply overlooked or failed to apply the statute, G.S. § 41-6. In any event, we do not think the case is controlling on the facts presented on the present record.

In view of what we have said and the cited authorities, we hold that the plaintiffs cannot give a fee simple title to the lands in question, neither can they give a fee simple title, defeasible "only upon the contingency of G. H. Ellis dying leaving a child, or children, or descendants of any child or children surviving him."

The judgment of the Court below is

Reversed.