Lackey v. Hamlet City Board of Education

128 S.E.2d 806 (1963) 258 N.C. 460

Thomas H. LACKEY, Eli A. Lackey, John C. Lackey and wife, Helen Lackey, Annie Louise Lackey, and Richard F. Lackey,
v.
The HAMLET CITY BOARD OF EDUCATION and the Town of Hamlet.

No. 457.

Supreme Court of North Carolina.

January 11, 1963.

A. A. Reaves, Hamlet, Bynum & Bynum, Rockingham, for defendants-appellants.

Jones & Jones, Rockingham, for plaintiffs-appellees.

DENNY, Chief Justice.

The question for determination is this: Does the defendant Hamlet City Board of Education now own the lot in controversy in fee absolute, or did title thereto revert to the plaintiffs when the aforesaid Board of Education abandoned the property for school purposes and ordered it to be sold at public auction?

In the interpretation of a deed, the intention of the grantor or grantors 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. Cannon v. Baker, 252 N.C. 111, 113 S.E.2d 44; Griffin v. Springer, 244 N.C. 95, 92 S.E.2d 682; Dull v. Dull, 232 N.C. 482, 61 S.E.2d 255; Ellis v. Barnes, 231 N.C. 543, 57 S.E.2d 772; Willis v. Trust Co., 183 N.C. 267, 111 S.E. 163; Springs v. Hopkins, 171 N.C. 486, 88 S.E. 774; 16 Am.Jur., Deeds, sections 171, 172 and 173, page 534, et seq.

In the case of Triplett v. Williams, 149 N.C. 394, 63 S.E. 79, 24 L.R.A.,N.S., 514, this Court said: "We concede all that is contended for as to the common-law rule of construction, and that it has been followed in this state. But this doctrine, which regarded the granting clause, and the habendum and tenendum as separate and independent portions of the same instrument, each with its especial function, is becoming obsolete in this country, and a more liberal and enlightened rule of construction obtains, which looks at the whole instrument, without reference to formal divisions, in order to ascertain the intention of the parties, and does not permit antiquated technicalities to override the plainly expressed intention of the grantor, and which does not regard as very material the part of the deed in which such intention is manifested."

In Willis v. Trust Co., supra, Adams, J., speaking for the Court, said: "The rigid technicalities of the common law have gradually yielded to the demand for a more rational mode of expounding deeds. Hence to discover the intention of the parties is now regarded as the chief essential in the construction of conveyances. The intention must be gathered from the whole instrument in conformity with established principles, and the division of the deed into formal parts is not permitted to prevail against such intention; for substance, not form, is the object sought. If possible, effect must be given to every part of a deed, and no clause, if reasonable intendment can be found, shall be construed as meaningless. Springs v. Hopkins, 171 N.C. 486, 88 S.E. 774; Jones v. Sandlin, 160 N.C. 155, 75 S.E. 1075; Eason v. Eason, 159 N. C. [539] 540, 75 S.E. 797; Acker v. Pridgen, 158 N.C. 337, 74 S.E. 335; [Carolinia] Real Estate Co. v. Bland, 152 N.C. [225] 231, 67 S.E. 483; Featherston v. Merrimon, 148 N.C. 199, 61 S.E. 675; Gudger v. White, 141 N.C. [507] 513, 54 S.E. 386."

It is provided in G.S. § 39-1 as follows: "When real estate is conveyed to any person, the same shall be held and construed to be a conveyance in fee, whether the word `heir' is used or not, unless such conveyance in plain and express words shows, or it is plainly intended by the conveyance or some part thereof, that the grantor meant to convey an estate of less dignity." (Emphasis added.)

This Court has 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. Oxendine v. Lewis, 252 N.C. 669, 114 S.E.2d 706; Edwards v. Butler, 244 N.C. 205, 92 S.E.2d 922; 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 our opinion, the facts disclosed by the contents of the deed under consideration are not controlled by the rule of construction laid down and followed in the foregoing decisions.

In the instant case, there can be no doubt about the intent of the grantors. The conveyance was made for a nominal consideration, and while the reverter clause was inartfully drawn and inserted immediately following the description in the deed, it must be construed to mean that the grantors intended that the land conveyed should revert to the grantors or their heirs if the property should be abandoned for school purposes. Moreover, the deed further provided that if and when the property reverted to the grantors or their heirs "that any and all improvements therein (thereon) shall remain the property of the town of Hamlet, N. C. (or its successors)." The grantors did not confine the expression of their intent alone to this reverter clause but in the habendum the grantees were "TO HAVE AND TO HOLD the aforesaid lot of or parcel of land, and all privileges and appurtenances thereto belonging, to the said parties of the second part, their successors and assigns, to their only use and behoof forever, for school purposes." (Emphasis added.)

In the case of Charlotte Park & Recreation Commission v. Barringer, 242 N.C. 311, 88 S.E.2d 114, Parker, J., speaking for the Court, quoted with approval from Tiffany: Law of Real Property, 3rd Ed., Section 220, as follows: "An estate in fee simple determinable, sometimes referred to as a base or a qualified fee, is created by any limitation which, in an otherwise effective conveyance of land, creates an estate in fee simple and provides that the estate shall automatically expire upon the occurrence of a stated event * * *. No set formula is necessary for the creation of the limitation, any words expressive of the grantor's intent that the estate shall terminate on the occurrence of the event being sufficient * * *. So, when land is granted for certain purposes, as for a schoolhouse, a church, a public building, or the like, and it is evidently the grantor's intention that it shall be used for such purposes only, and that, on the cessation of such use, the estate shall end, without any re-entry by the grantor, an estate of the kind now under consideration is created. It is necessary, it has been said, that the event named as terminating the estate be such that it may by possibility never happen at all, since it is an essential characteristic of a fee that it may possibly endure forever."

In Willis v. Trust Co., supra, Joseph S. J. Regan, for a consideration of $1,000, conveyed to Mary Regan and her bodily heirs a tract of land in Robeson County, "To have and to hold the aforesaid tract or parcel of land and all privileges and appurtenances thereto belonging, to the said Mary Regan and her bodily heirs, and to their only use and behoof forever.

"And the said J. S. J. Regan covenants that he is seized of said premises in fee and hath the right to convey the same in fee simple; that the same are free from all encumbrances and that he will warrant and defend the said title to the same against the claims of all persons whatsoever, to his daughter, Mary Regan, and the heirs of her body, and if no heirs, said lands shall go back to my estate."

On 1 October 1914, Mary Regan conveyed said land to Joe Willis, reserving a life estate, and on 3 December 1921, these two entered into a written agreement to convey to the defendant fifty acres of the land at a price of $3,400. The defendant refused to accept the deed tendered on the ground that the grantors could not convey the premises in fee simple. Mary Regan at the time was more than seventy years of age and had never married. The court below held that the grantors could convey a good title to the premises. On appeal to this Court, among other things, the Court said: "* * * (W)e conclude that the deed should be construed as if it read, `to Mary Regan and the heirs of her body (a fee simple, C.S. § 1734) [now GS 41-1] and if she should die not having such heirs or issue living at the time of her death then to the heirs of the grantor.'" The Court then held that "* * * Mary Regan acquired under the deed of her grantor a fee simple determinable upon her dying without having heirs of her body or issue living at the time of her death, and that she and her coplaintiff cannot convey to the defendant an indefeasible estate in fee."

We hold that the grantors conveyed to the grantees and their successors a fee simple title to the premises described in said deed, determinable upon the abandonment of the premises for school purposes. We further hold that the reverter clause and the purposes for which the property was to be held as expressed in the habendum, are not irreconcilable with or repugnant to the granting clause. Hence, the judgment of the court below is

Affirmed.