Ange v. Ange

71 S.E.2d 19 (1952)

235 N.C. 506

ANGE et al. v. ANGE.

No. 98.

Supreme Court of North Carolina.

April 30, 1952.

Supplemental Opinion June 11, 1952.

*20 Chas. H. Manning, Williamston, for defendant appellant.

Peel & Peel, Williamston, for plaintiff appellees.

VALENTINE, Justice.

It will be noted at the outset that the judgment rendered was in favor of the defendant and did not adversely affect any substantial right of his. Therefore, he was not the proper party to appeal from the judgment. Hence, the appeal is subject to dismissal. Even so, the proceeding is in rem and the judgment entered in the court below vitally affects the title to real property. For that reason we take jurisdiction for the purpose of correcting the error in the judgment. This we may do in the exercise of our supervisory power. N.C. Const. Art. IV, sec. 8; State v. Cochran, 230 N.C. 523, 53 S.E.2d 663.

The only question posed by this appeal is: Do the words "for church purposes only" appearing at the conclusion of the habendum clause have the effect of reducing the estate from an indefeasible title to some lesser estate? It will be noted that there is no language which provides for a reversion of the property to the grantors or any other person in case it ceases to be used as church property.

Ordinarily a clause in a deed will not be construed as a condition subsequent, unless it contains language sufficient to qualify the estate conveyed and provides that in case of a breach the estate will be defeated, and this must appear in appropriate language sufficiently clear to indicate that this was the intent of the parties. Braddy v. Elliott, 146 N.C. 578, 60 S.E. 507, 16 L.R.A.,N.S., 1121.

"A clause in a conveyance will not be construed as a condition subsequent unless it expresses, in apt and appropriate language, the intention of the parties to this effect (Braddy v. Elliott, 146 N.C. 578, 60 S.E. 507, 16 L.R.A.,N.S., 1121), and a mere statement of the purpose for which the property is to be used is not sufficient to create such condition. Hall v. Quinn, supra (190 N.C. 326, 130 S.E. 18); First Presbyterian Church v. Sinclair Refining Co., supra (200 N.C. 469, 157 S.E. 438); Shields v. Harris, 190 N.C. 520, 130 S.E. 189; Shannonhouse v. Wolfe, 191 N.C. 769, 133 S.E. 93; University of North Carolina v. City of High Point, 203 N.C. 558, 166 S.E. 511; Tucker v. Smith, 199 N.C. 502, 154 S.E. 826; Lassiter v. Jones, supra (215 N.C. 298, 1 S.E.2d 845); Cook v. Sink, 190 N.C. 620, 130 S.E. 714.

"`A grantor can impose conditions and can make the title conveyed dependent upon their performance. But if he does not make any condition, but simply expresses the motive which induces him to execute the deed, the legal effect of the granting words cannot *21 be controlled by the language indicating the grantor's motive.' 2 Devlin on Deeds, sec. 838; St. James Parish v. Bagley, supra (138 N.C. 384, 50 S.E. 841, 70 L.R.A. 160); Mauzy v. Mauzy, 79 Va. 537." Oxford Orphanage v. Kittrell, 223 N.C. 427, 27 S.E.2d 133, 136; Shaw University v. Durham Life Ins. Co., 230 N.C. 526, 53 S.E.2d 656.

Rigid execution of conditions subsequent are not favored by the law and are strictly construed because they tend toward the destruction of estates and in many instances are not reconcilable with good conscience. Hinton v. Vinson, 180 N.C. 393, 104 S.E. 897; First Presbyterian Church v. Sinclair Refining Co., supra.

It is clear from a fair interpretation of the entire deed under which the Church took title to the property that the grantors intended by the last line of the habendum clause only to express their motive in deeding the property to the Church. Upon the authorities herein cited, we reach the conclusion and so hold that the Christian Church of Jamesville acquired an indefeasible title to the property in question and has a right to convey the same in fee simple. It follows, therefore, that the judgment below must be

Reversed.

This is a supplement to the opinion heretofore filed in this cause on 30 April 1952.

When the case on appeal was docketed here, it included a judgment of the court below in which it was adjudged that the plaintiffs could not convey a fee simple title to the lands referred to in the pleadings, and that the defendant was, therefore, not required to accept the deed tendered. The opinion of this Court was written upon the judgment certified.

After the opinion was filed, it was discovered that there was a mistake in the certification of the judgment and that in the judgment actually signed in this cause by Judge Frizzelle it was adjudged that the Trustees of the Jamesville Christian Church owned the locus in quo in fee and had the right to convey the same in fee simple and that the defendant was therefore required to accept the deed tendered to him and pay the consideration therein expressed.

The correct judgment of the lower court has been substituted for the erroneous one, so that the record now speaks the truth. This does not, however, affect the opinion of the Court as originally written, but upon the record as it now stands, the opinion of this Court affirmed the court below rather than reversed it.

It is ordered that this supplemental opinion be appended to the original and published as a part of the original opinion of the Court.