Davis v. Brown

84 S.E.2d 334 (1954)

241 N.C. 116

Luther J. DAVIS, Albert LeRoy Davis, Mrs. Juanita D. Hargett, Robert Davis, Albert H. Davis, Thomas I. Davis, Mrs. Mollle D. Boyd, Artis Davis and Mrs. Louie Dell Towne, Petitioners, v. Mrs. Jessie Florine Frazier BROWN, Mrs. Susan Beatrice Davis Gaskins, Hervey C. Ipock, Archie Davis, and Carol Yvonne Davis, Bert Jefferson Davis and Ruby Elizabeth Davis, Minors, Respondents.

No. 316.

Supreme Court of North Carolina.

November 10, 1954.

*336 Larkins & Brock, Trenton, Wm. J. Lansche, Jr., and R. A. Nunn, New Bern, for appellants.

Lee & Hancock, Grantham & May, New Bern, for appellees.

DENNY, Justice.

Ordinarily, in construing a deed it is the duty of the court to ascertain the intent of the grantor or grantors as embodied in the entire instrument, and each and every part thereof must be given effect if this can be done by any fair or reasonable interpretation. Featherston v. Merrimon, 148 N.C. 199, 61 S.E. 675; Triplett v. Williams, 149 N.C. 394, 63 S.E. 79, 24 L.R.A.,N.S., 514; In re Dixon, 156 N.C. 26, 72 S.E. 71; Acker v. Pridgen, 158 N.C. 337, 74 S.E. 335; Midgett v. Meekins, 160 N.C. 42, 75 S.E. 728; Seawell v. Hall, 185 *337 N.C. 80, 116 S.E. 189; Boyd v. Campbell, 192 N.C. 398, 135 S.E. 121; Jefferson v. Jefferson, 219 N.C. 333, 13 S.E.2d 745; Bryant v. Shields, 220 N.C. 628, 18 S.E.2d 157. However, in arriving at the intent of the grantor in a deed, we must not lose sight of the principle that when rules of construction have been settled they should be observed and enforced. Boyd v. Campbell, supra; Bagwell v. Hines, 187 N.C. 690, 122 S.E. 659.

It is settled law with us that when a conveyance is made to A and his children, if A has children when the deed is executed, he and they take as tenants in common. Cullens v. Cullens, 161 N.C. 344, 77 S.E. 228, L.R.A.1917B, 74. But if A has no children when the deed is executed, he takes an estate tail which, under our statute, is converted into a fee. G.S. § 41-1; Cole v. Thornton, 180 N.C. 90, 104 S.E. 74; Boyd v. Campbell, supra. Cf. Martin v. Knowles, 195 N.C. 427, 142 S.E. 313.

In Boyd v. Campbell, supra [192 N.C. 398, 135 S.E. 122], the granting clause was, "`To the said Pleas Clodfellow his children and then to his grandchildren forever and heirs and assigns'". The habendum was, "`To the said Pleas Clodfellow to him and his children their lives heirs and assigns to and then to his grandchildren forever only use and behoof forever.'" Clodfellow had no children when the deed was executed and this Court held that he took a fee tail which, under C.S. § 1734, now G.S. § 41-1, was converted into a fee.

Likewise, Myrtle LaMott Davis had no children when the deed was executed to her; therefore, she obtained an estate tail which the statute converted into a feesimple title, subject to the life estate of her parents, the grantors. Hence, the judgment of the court below is

Affirmed.