Kennedy v. Kennedy

72 S.E.2d 869 (1952)

236 N.C. 419

KENNEDY et al. v. KENNEDY.

No. 390.

Supreme Court of North Carolina.

November 5, 1952.

*870 Russell J. Lanier, Beulaville, and Grady Mercer, Kenansville, for petitioners appellants.

Henry L. Stevens, III, and E. Walker Stevens, Warsaw, for defendant appellee.

VALENTINE, Justice.

Does the language appearing at the end of the description in each of the three deeds under which Hobart A. Kennedy took title to the lands in question have the effect of creating life estates in the grantors named in said deeds? This question must be answered in the negative.

The recent case of Artis v. Artis, 228 N. C. 754, 47 S.E.2d 228, furnishes abundant authority for the position here taken.

In the deeds now under consideration, the words of the granting clause, the habendum clause, and the warranty are clear and unambiguous and are fully sufficient to pass immediately a fee simple title to Hobart A. Kennedy upon delivery of the deeds. These operative clauses constitute an unrestricted conveyance of the land. Whitley v. Arenson, 219 N.C. 121, 12 S.E.2d 906; Artis v. Artis, supra. It is well established that the granting clause, when clear, specific and unequivocal, will generally prevail over other recitals in the conveyance. 16 AJ 575; Mayberry v. Grimsley, 208 N.C. 64, 179 S.E. 7. This is especially true when, as in the present case, all other operative provisions of the deed are consonant with the granting clause.

In the Artis case [228 N.C. 754, 47 S.E.2d 232], Winborne, J., speaking for the Court, said: "Ordinarily the premises and granting clauses designate the grantee and the thing granted,while the habendum clause relates to the quantum of the estate. `The granting clause is the very essence of the contract.' 16 Am.Jur., 567. Bryant v. Shields [220 N.C. 628, 18 S.E.2d 157]. And the habendum, in the present case, is in harmony with the granting clause. Therefore, the clause undertaking to divest or limit the fee simple title which had been conveyed unqualifiedly * * * is repugnant to both the granting clause and the habendum. Hence the granting clause will prevail and the repugnant clause will be rejected." Citing Blackwell v. Blackwell, 124 N.C. 269, 32 S.E. 676; Wilkins v. Norman, 139 N.C. 40, 51 S.E. 797; Bryant v. Shields, supra; McNeill v. Blevins, 222 N. C. 170, 22 S.E.2d 268.

It clearly appears, in the present case, that the language appearing immediately after the description in each deed attempts to cut down or limit the estate conveyed and is therefore inconsistent with and repugnant to all other provisions of the deed, including the granting clause. Consequently, the incompatible recital must yield to the more effective operative clauses, and must be rejected as repugnant.

*871 We therefore conclude that a fee simple title to the lands in question passed to Hobart A. Kennedy immediately upon the delivery of the deeds, and that his widow is entitled to dower in all of the lands described in the pleadings. G.S. § 30-5; Citizens Bank & Trust Co. v. Watkins, 215 N.C. 292, 1 S.E.2d 853. The court below was fully authorized to proceed with the appointment of jurors for the allotment of the dower. Campbell v. Murphy, 55 N.C. 357; Citizens Bank & Trust Co. v. Watkins, supra; Artis v. Artis, supra.

For the reasons assigned, the judgment below is affirmed.