Johnson v. Burrow

256 S.E.2d 811 (1979)

42 N.C. App. 273

Grace Willie JOHNSON and husband, Hoyt Johnson, of Randolph County, Petitioners, v. William Kelly BURROW and wife, Jane J. Burrow, Judy B. Isaacson and husband, Paul Isaacson, Jack Thomas Upton and wife, Lola Comer Upton, all of Randolph County, North Carolina, William W. Burrow by his guardian ad litem, Solonia Frances Burrow, and his wife, Solonia Frances Burrow, of Randolph County, North Carolina, Don Thomas Upton and wife, Jeannie Upton, Carolyn Urrp (Earp) and husband, Larry Urrp (Earp), and Lula C. Upton, all of Mecklenburg County, North Carolina, Respondents.

No. 7819SC418.

Court of Appeals of North Carolina.

July 17, 1979.

*814 Richard H. Robertson, Charlotte, for respondent-appellant, Lula C. Upton.

Coltrane, Gavin & Pugh by Alan V. Pugh, Asheboro, for petitioners-appellees, Grace Willie Johnson and her husband, Hoyt Johnson.

Ottway Burton, Asheboro, for respondents-appellees, William Kelly Burrow and his wife, Jane J. Burrow; Judy B. Isaacson and her husband, Paul Isaacson; Jack Thomas Upton and his wife, Lola Comer Upton; William W. Burrow by his Guardian ad litem, Solonia Frances Burrow, and his wife, Solonia Frances Burrow.

*815 MORRIS, Chief Judge.

The first question which must be answered on this appeal is whether the Alvis Upton deeds conveyed the land in question to John K. Upton and his wife, Addie B. Upton as tenants by the entirety. The court concluded that the deeds did not create an estate by the entirety. We are constrained to agree.

In all three deeds the names of J. K. Upton or John K. Upton and his wife, A. B. or Addie Upton, appear in the recital of the parties. In one deed, this is the only place the wife's name appears. In two of the deeds the wife's name also appears in the habendum and warranty along with J. K. or John or John K. Upton. Two of the deeds state that the consideration named was paid by J. K. or John K. Upton. In one deed the named consideration was paid by "the party of the second part". In all three deeds the granting clause conveys the property to "J. K. Upton and his Body heirs," or "John K. Upton and his heirs" or "said J. K. Upton and his heirs."

G.S. 39-1.1 provides:

"(a) In construing a conveyance executed after January 1, 1968, in which there are inconsistent clauses, the courts shall determine the effect of the instrument on the basis of the intent of the parties as it appears from all of the provisions of the instrument. (b) The provisions of subsection (a) of this section shall not prevent the application of the rule in Shelley's case."

In Whetsell v. Jernigan, 291 N.C. 128, 229 S.E.2d 183 (1976), the Court said:

"By the passage of G.S. 39-1.1, it would appear that `[i]t is the legislative will that the intention of the grantor and not the technical words of the common law shall govern.' Triplett v. Williams, supra, 149 N.C. [394], at 398, 63 S.E. [79] at 80. See also Comment, 4 Wake Forest Intra.L. Rev. 132 (1968). Thus, we are of the opinion that so long as it does not prevent the application of the rule in Shelley's case, conveyances executed after 1 January 1968 in which there are inconsistent clauses shall be construed in accordance with G.S. 39-1.1 so as to effectuate the intent of the parties as it appears from all the provisions in the instrument. However, we hold that G.S. 39-1.1 does not apply to conveyances executed prior to 1 January 1968 and that such conveyances will be construed in accordance with the principles enunciated in Artis v. Artis, supra, [228 N.C. 754, 47 S.E.2d 228], and Oxendine v. Lewis, supra [252 N.C. 669, 114 S.E.2d 706]." 291 N.C. at 133, 229 S.E.2d at 187.

In Artis v. Artis, 228 N.C. 754, 47 S.E.2d 228 (1948), the granting clause conveyed a fee simple estate. The habendum was in accord and made no attempt to restrict or enlarge the estate. The clause which was repugnant to both the granting clause and the habendum appeared in the description and attempted to limit or divest the fee simple title which had been conveyed by the granting clause. The Court held that the granting clause would prevail and the repugnant clause would be rejected. The rule was stated to be:

"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." 228 N.C. at 761, 47 S.E.2d at 232.

Also in Oxendine v. Lewis, 252 N.C. 669, 114 S.E.2d 706 (1960), the granting clause conveyed a fee simple, the habendum was in accord, and the clause which attempted to limit the estate granted to a life estate with remainder to grantor appeared at the end of the description. The Court held that the words which tended to limit the fee simple estate granted were not in the granting clause or the habendum and, under a long line of cases cited, would be deemed surplusage and of no force and effect.

In Whetsell, the repugnant clause also appeared in the description and the granting clause conveyed a fee simple, and the *816 habendum contained no limitation of the fee granted by the granting clause. Nevertheless, we have found nothing to require limiting the rule of Artis, Oxendine, and Whetsell to those situations where the repugnant clause appears only in the description. See Gamble v. Williams, 39 N.C.App. 630, 251 S.E.2d 625 (1979). Indeed we think the principles enunciated and applied are in accord with the settled rules of construction generally applied prior to the effective date of G.S. 39-1.1.

In Wilkins v. Norman, 139 N.C. 40, 51 S.E. 797 (1905), a fee simple estate was conveyed by the granting clause, the habendum was in accord, but the clause attempting to limit the estate to a life estate appeared after the warranty clause. The Court held the repugnant clause ineffective. Justice Connor, writing for the Court, quoted with approval what was said by Justice Ashe in Rowland v. Rowland, 93 N.C. 214 (1885):

"`Blackstone, in his Commentaries, (vol. 2, p. 298), has said that the office of the habendum is to lessen, enlarge, explain or qualify the premises, but not to contradict or be repugnant to the estate granted in the premises. And to illustrate what is meant by the repugnancy which will render the habendum nugatory, he puts the case where, in the premises the estate is given to one and his heirs, habendum to him for life; for an estate [of inheritance] is vested in him before the habendum comes, and shall not afterwards be taken away and divested by it.' The deed in that case upon which the decision is based is essentially different from ours. We have considered the case upon the assumption that the clause under which plaintiffs claim contains apt words to convey an estate in remainder. This, however, is by no means clear. While we are advertent to the general rule that the Court will by an examination of the entire deed seek, and, if found, effectuate the intention of the grantor, we must keep in view the other rule that when rules of construction have been settled, it is the duty of the Court to enforce them, otherwise titles are rendered uncertain and insecure." 139 N.C. at 42-43, 51 S.E. at 798.

In Triplett v. Williams, 149 N.C. 394, 63 S.E. 79 (1908), the granting clause conveyed a fee simple estate and the habendum limited the estate to a life estate. The Court discussed the intent of the grantor and held:

"Taking into consideration the whole of the deed under discussion, it is clear beyond doubt that it was the intention of the grantor that the habendum should operate as a proviso or limitation to the granting clause in the premises, and control it so as to limit the estate conveyed to his daughter Margaret to a life estate, with a remainder over to her children." 149 N.C. at 398-99, 63 S.E. at 80-81.

Appellants rely on Triplett as a departure by the Court from the common law rule that certain technical portions of the deed controlled the estate granted and the adoption of a rule that the intentions of the parties, gathered from the entire instrument, must be determinative. We think the reliance is misplaced. The Triplett Court was following the principle enunciated by the same Court only a month earlier in Condor v. Secrest, 149 N.C. 201, 62 S.E. 921 (1908), although it did not cite the case. In Condor, the Court following Blair v. Osborne, 84 N.C. 417 (1881), held that a deed should be construed in accordance with the intent of the parties if the rules of law would permit that construction. Both Blair and Condor held that one not named in the granting clause of the deed may, nevertheless, take an estate in remainder by limitation in the habendum, because although the habendum cannot ever introduce in the deed as grantee one who is a stranger to the granting clause, he may take by way of remainder by the habendum.

Both Blair and Condor were quoted with approval in Bryant v. Shields, 220 N.C. 628, 18 S.E.2d 157 (1942). The facts there are strikingly similar to the facts in the case before us for decision. The recitals of the deed designated the grantee as John W. Smith, the payment of the consideration by John W. Smith was acknowledged, and the *817 granting clause was to John W. Smith and his heirs. In the habendum clause appeared the words: "to the said John W. Smith and wife, Amanda C. Smith, and their heirs". Amanda C. Smith survived John W. Smith, and plaintiff, her executor, instituted the action claiming that she had acquired title to the land in question by virtue of her having survived her husband. The Court did not agree that the deed conveyed an estate by the entirety and held that John W. Smith alone took an estate in fee simple under the deed. In so doing the Court reaffirmed the settled rules that "`The granting clause is the very essence of the contract'", Bryant v. Shields, 220 N.C. at 632, 18 S.E.2d at 160; the granting clause designates the grantee and the thing granted; the office of the habendum is "to lessen, enlarge, explain, or qualify the estate granted . . . but not to contradict or be repugnant to the estate granted . ." 220 N.C. at 632, 18 S.E.2d at 159. The Court also noted that all parts of the deed should be considered in ascertaining the intent of the grantor, but in so doing the Court may not disregard recognized canons of construction and settled rules of law.

The rule is stated succinctly in Ingram v. Easley, 227 N.C. 442, 444, 42 S.E.2d 624, 626 (1947). "In the event of any repugnancy between the granting clause and preceding or succeeding recitals, the granting clause will prevail." See also Gamble v. Williams, supra. The rule is subject only to the limitations which may be placed by the habendum upon the estate granted if such a limitation clearly appears to be the intent of the grantor.

From an examination of the deeds before us, and applying the rules of construction which we must, we come to the conclusion that the deeds did not create an estate by the entirety in John K. Upton and his wife, but conveyed to John K. Upton a fee simple estate individually. Nor do we think this result does violence to an attempt to ascertain the intent of the grantor. In these deeds, the one clear unambiguous indicia of intent is the fact that all deeds acknowledged the payment of consideration by John K. Upton and in all deeds the granting clause was to John K. Upton.

We must now determine the validity of the deed [listed as (4) above] dated 30 November 1922, of record in Book 206 at page 494, Randolph County Registry, which purports to convey to John K. Upton the 80-acre tract described as 1.(1) in the petition. By deed dated 2 June 1919, John K. Upton had conveyed the tract to Addie Upton, his wife. The validity of that deed is not questioned if John K. was seized in fee of the land, as we have held that he was. The deed from Addie to John contains the certificate of the Clerk of the Superior Court that the grantor, Addie Upton, was by him "privately examined, separate and apart from her said husband, touching her voluntary execution of the same", and that she "doth state that she signed the same freely and voluntarily, without fear or compulsion of her said husband, or of any other person, and that she doth still voluntarily assent thereto." The Clerk did not certify that the conveyance was not unreasonable or injurious to Addie, obviously because this finding was not incorporated in the form deed used. The deed was, in all other respects, regular. Former G.S. 52-6 required contracts between husband and wife during coverture to be in writing and acknowledged before a certifying officer who was required to make a private examination of the wife touching upon her voluntary execution of the contract. Further, subsection (b) thereof required in part that "[t]he certifying officer examining the wife shall incorporate in his certificate a statement of his conclusions and findings of fact as to whether or not (sic) said contract is unreasonable or injurious to the wife." It is this certificate which is lacking in the deed from Addie to John. The court took the position that G.S. 39-13.1(b) validated the deed. The statute provides:

"(b) Any deed, contract, conveyance, lease or other instrument executed prior to February 7, 1945, which is in all other respects regular except for the failure to take the private examination of a married woman who is a party to such deed, *818 contract, conveyance, lease or other instrument is hereby validated and confirmed to the same extent as if such private examination had been taken, provided that this section shall not apply to any instruments now involved in any pending litigation."

Appellants contend that the statute has no application, relying on Mansour v. Rabil, 277 N.C. 364, 177 S.E.2d 849 (1970), and Boone v. Brown, 11 N.C.App. 355, 181 S.E.2d 157 (1971), which followed Mansour. Appellants' reliance is misplaced. Both cases are distinguishable. In neither case had there been any attempt to comply with sections (a), (b), or (c) of G.S. 52-6. The Court, therefore, held that the document before the Court, in Mansour a joint will and in Boone a deed, was not "in all other respects regular." Here, however, the certifying officer was the proper officer, the Clerk of Superior Court, and he did conduct a private examination touching her voluntary execution of the deed. The only omission was the certificate that the deed was not unreasonable or injurious to her. The deed was in all other respects regular. There is no contention that there is any defect in the premises, the granting clause, the description, the habendum, or the warranties or that there is anything about the deed which is not regular except the lack of the certificate of the certifying officer as to injury or unreasonableness. We think this is certainly one of the situations to which G.S. 39-13.1(b) was intended to apply. Otherwise, the curative statute would be stripped of all meaning.

Appellant presents no argument with respect to the position that she has acquired title to the property by adverse possession. While neither that question nor the question of equitable estoppel as to Grace Willie Johnson is before us, we do not think it inappropriate to say that we agree with the trial court's findings that the evidence does not support either theory.

Affirmed.

CLARK and ARNOLD, JJ., concur.