Rouse v. Strickland

133 S.E.2d 151 (1963)

260 N.C. 491

Mrs. Ina H. ROUSE et al. v. Jackson W. STRICKLAND, Sr., and B. R. Alford and J. M. Alford, Partners Trading as Alford Brothers Lumber Company.

No. 387.

Supreme Court of North Carolina.

November 20, 1963.

*153 Defendants excepted and appealed.

John F. Matthews and Hill Yarborough, Louisburg, for plaintiff appellees.

*154 E. C. Bulluck and Yarborough & Jolly, Louisburg, for defendant appellant Strickland.

W. H. Taylor, Louisburg, for defendant appellants Alford.

BOBBITT, Justice.

The sole question is whether the court erred in concluding that the 1936 deed conveyed to Mrs. Ella S. Mann only a life estate in the land described therein as the "4th TRACT," to wit, the J. T. Mann homeplace.

"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." Davis v. Brown, 241 N.C. 116, 118, 84 S.E.2d 334, and cases cited; Franklin v. Faulkner, 248 N.C. 656, 659, 104 S.E.2d 841.

The title to all lands of which J. T. Mann was seized and possessed at the time of his death descended to and vested in his heirs subject to his widow's right of dower. The 1936 deed was executed approximately six and one-half months after the death of J. T. Mann. It recites that the heirs and widow of J. T. Mann had "mutually agreed on a disposition of the real estate of which the said J. T. Mann died seized and possessed." In the clause beginning, "NOW, THEREFORE, WITNESSETH," the grantors, "for and in consideration of the sum of $1175.00, which has been mutually agreed upon as the purchase price to be paid by the party of the second part to the parties of the first part," granted, bargained, sold and conveyed unto Mrs. Ella S. Mann, her heirs and assigns, "the following described land." Immediately thereafter the descriptions of the "1st TRACT," the "2nd TRACT" and the "3rd TRACT" are set forth. Each of these descriptions begins as follows: "All of our right, title and interest in fee simple in and to that certain tract or parcel of land * * *" (Our italics) Preceding the description of the "4th TRACT," the 1936 deed provides: "The parties of the first part convey to the party of the second part a life estate for and during the natural life of Ella S. Mann in and to the J. T. Mann homeplace, said conveyance of a life estate in said homeplace being mutually agreed to and accepted by Ella S. Mann, Widow, in full and complete satisfaction and settlement of any and all dower rights in and to the lands of which J. T. Mann died seized." (Our italics)

When all parts of the 1936 deed are considered, it is manifest the following was intended: (1) The sale and conveyance by the heirs to the widow of the fee in the "1st TRACT," the "2nd TRACT" and the "3rd TRACT," in consideration of the purchase price of $1,175.00; and (2) the conveyance by the heirs to the widow of a life estate in the "4th TRACT" in consideration of the widow's acceptance thereof in lieu of dower. This intention of the grantors to convey only a life estate in the "4th TRACT" controls decision unless "in conflict with some unyielding canon of construction, or settled rule of property, or fixed rule of law, or is repugnant to the terms of the grant." Griffin v. Springer, 244 N.C. 95, 98, 92 S.E.2d 682, and cases cited; Cannon v. Baker, 252 N.C. 111, 113, 113 S.E.2d 44; Lackey v. Board of Education, 258 N.C. 460, 462, 128 S.E.2d 806.

It is well settled that "(t)he heart of a deed is the granting clause." Griffin v. Springer, supra, and cases cited. This is stressed by plaintiffs and by defendants.

Defendants contend the 1936 deed contains (only) one granting clause, namely, the clause beginning "NOW, THEREFORE, WITNESSETH"; that this clause conveys "the following described land," including the land described as the "4th TRACT," to Mrs. Ella S. Mann, her heirs and assigns; and that the provisions of the habendum and warranty clauses support this *155 contention. Defendants cite and rely upon Oxendine v. Lewis, 252 N.C. 669, 114 S.E.2d 706, and cases cited therein.

The premise upon which defendants base their said contention is unsound. We think it clear the 1936 deed contains two granting clauses. Each is separate and distinct from the other and each is complete within itself. The clause beginning, "NOW, THEREFORE, WITNESSETH," is the first granting clause. It conveys the fee in the "1st TRACT," the "2nd TRACT" and the "3rd TRACT." The second granting clause conveys a life estate in the "4th TRACT." Each clause (1) designates the grantors and the grantee, (2) describes the land conveyed, (3) contains operative words of conveyance, (4) sets forth the consideration for the conveyance, and (5) defines the quantum of the estate conveyed. See Griffin v. Springer, supra, and cases cited. The two clauses are not inconsistent or repugnant. They simply relate to different lands.

If the habendum and warranty clauses were considered in conflict therewith, the second granting clause (relating specifically to the J. T. Mann homeplace) would control decision. Griffin v. Springer, supra, and cases cited. Here, the provisions of the habendum and the warranty clauses may be reconciled completely with the provisions of the first granting clause. It would seem the provisions of the habendum and warranty clauses were intended to apply only to the lands conveyed in the first granting clause and therefore should not be considered in conflict with the second granting clause.

Being in agreement with the ruling of Judge Bickett that the 1936 deed conveyed only a life estate (for the life of Mrs. Ella S. Mann) in the lands described therein as the "4th TRACT," to wit, the J. T. Mann homeplace, the judgment of the court below is in all respects affirmed.

Affirmed.