Oxendine v. Lewis
Oxendine v. Lewis
Opinion of the Court
A former appeal in this case, wherein Roy Oxendine
The granting clause in the Roy Oxendine deed conveys to Malinda Oxendine Hunt an unqualified fee simple estate. The habendum clause contains no limitation on the fee thus conveyed, and a fee simple title is warranted in the covenants of title.
Jeffries v. Parker, 236 N.C. 756, 73 S.E. 2d 783, was a suit to enforce specific performance of a contract to purchase land. These are the facts in that suit: On 21 January 1919, Mary J. Jeffries conveyed land to E. Worth Jeffries and James H. Jeffries by recorded deed. The granting clause in the deed conveyed an unqualified fee and the habendum clause contains no limitation on the fee thus conveyed and a fee simple title is warranted in the covenants of title. The paragraph describing the land conveyed contains the following at the end and as a part thereof: “It is understood that in case of the death of James H. Jeffries before he otherwise disposes of his part of this land, that his share is to be the property of E. Worth Jeffries in fee simple, subject to the dower right of James H. Jeffries’ wife, Mandy Jeffries.” Mandy Jeffries predeceased James H. Jeffries. On 21 March 1942, James H. Jeffries died intestate, leaving surviving certain collateral heirs. At the time of his death he had not disposed of or conveyed his interest in said land. The trial court held that the deed “vested in James H. Jeffries a defeasible fee subjected to be defeated upon his having not disposed of same prior to his death and in which event the said title vested in the survivor, E. Worth Jeffries, and the said E. Worth Jeffries now holds an absolute fee simple title to the said property,” and decreed specific performance. This Court reversed the judgment below, saying: “When the granting clause in a deed to real property conveys an unqualified fee and the habendum contains no limitation on the fee thus conveyed and a fee simple title is warranted in the covenants of title, any additional clause or provision repugnant thereto andi not by reference made a part thereof, inserted in the instrument as a part of, or following the description of the property conveyed, or eleswhere other than in the granting or habendum clause, which tends to delimit the estate thus conveyed, will be deemed mere surplusage without force or effect. Artis v. Artis, 228 N.C. 754, 47 S.E. 2d 228, and cases cited; Kennedy v. Kennedy, 236 N.C. 419; Whitley v. Arenson, 219 N.C. 121, 12 S.E. 2d 906; McNeill v. Blevins,
The relevant facts for our decision here in Edwards v. Butler, 244 N.C. 205, 92 S.E. 2d 922, are: On 19 January 1912, Joseph G. Edwards executed a warranty deed to his wife “Lilly Mae Edwards, her lifetime and then to my children . . . .,” conveying the premises described in the petition. The granting clause, the habendum and the warranty in the deed are in the usual form and fully sufficient to pass a fee simple title. Following the description of the land, the grantor inserted the following: “It is known and understood that I, Joseph G. Edwards, hereby except my life estate in the above conveyed premises.” In its opinion, this Court said: “The first question to be determined is whether or not the attempted reservation of a life estate in the grantor in the deed from Joseph G. Edwards to Lilly Mae Edwards, his wife, was valid. We have repeatedly held that when the granting clause, the habendum, and the warranty in a deed axe clear and unambiguous and fully sufficient to pass immediately a fee simple estate to the grantee or grantees, that a paragraph inserted between the description and the habendum, in which the grantor seeks to reserve a life estate in himself or another, or to otherwise limit the estate conveyed, will be rejected as repugnant to the estate and interest therein conveyed. Whitson v. Barnett, 237 N.C. 483, 75 S.E. 2d 391; Jeffries v. Parker, 236 N.C. 756, 73 S.E. 2d 783; Kennedy v. Kennedy, 236 N.C. 419, 72 S.E. 2d 869; Swaim v. Swaim, 235 N.C. 277, 69 S.E. 2d 534; Pilley v. Smith, 230 N.C. 62, 51 S.E. 2d 923; Artis v. Artis, 228 N.C. 754, 47 S.E. 2d 228. In the deed under consideration, the words in the granting clause, the habendum, and warranty are clear and unambiguous and are sufficient to pass immediately a fee simple title to the land described therein. These portions of the deed contained nothing that might even suggest an intention on the part of the grantor to convey an estate of less diignity than a fee simple, indefeasible title to the premises described therein, subject to the life estate of his wife. Hence, we hold that the attempt of the grantor to create a life estate in himself by the method used was ineffective and will be rejected as mere surplusage. Jeffries v. Parker, supra.”
In McCotter v. Barnes, 247 N.C. 480, 101 S.E. 2d 330, a printed form deed was used with written words inserted. The granting clause in the deed conveys an unqualified fee simple estate. The habendum clause places no limitation on the estate conveyed by the granting clause. A fee simple estate is warranted in the covenants of title. The
Shephard v. Horton, 188 N.C. 787, 125 S.E. 539, is clearly distinguishable. The granting clause of the deed was “to the said party of the second part during her natural life and — heirs and assigns,” a tract of land describing it. The habendum clause reads, “To have and to hold the aforesaid tract or parcel of land during her natural life, with any and all privileges and appurtenances thereto belonging to the said Victory Horton, ■ — • heirs and assigns, to her only use and behoof forever.” A fee simple title is warranted in the covenants of title. The deed was written on a printed blank form prepared for general use and the words “during her natural life” were written by the draftsman. In the dieed in that case the written words and the printed words in the granting clause and in the habendum are inconsistent, and it was held that the written words “during her natural life” controlled the construction, and that the grantee took a life estate.
The words in the deed in the instant case, apparently written in with a typewriter, appearing before and after the description of the land conveyed in fee simple and which tend to delimit the fee simple estate conveyed are not in the granting or habendum clause, and under a long line of our decisions as above set forth will be deemed surplus-age without force or effect.
Reversed.
Dissenting Opinion
The deed is from a son to his mother. Obviously, the conveyance of a life estate was intended. This intention should control 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. In my opinion, the rules of law enunciated in the cases cited in the Court’s opinion do not require that the intention of the parties be thwarted.
“The heart of a deed is the granting clause.” Griffin v. Springer, supra, and cases cited. The granting clause designates the grantee and the thing granted. Artis v. Artis, 228 N.C. 754, 760, 47 S.E. 2d 228. Consideration of the granting clause requires the construction that the thing granted is not a described tract of land but “a life estate in and to the following described tract of land.” The factual situation is distinguishable from cases where, after conveyance of a described tract of land in fee, a subsequent provision, not an integral part of the granting clause, purports to delimit the fee theretofore explicitly conveyed.
A rule of law which supersedes and frustrates the intention of the parties should not be extended to encompass the present factual situation but should be restricted to factual situations undistinguishable from those heretofore considered.
Reference
- Full Case Name
- ROY OXENDINE (Original Plaintiff), WILLIAM L. OXENDINE, Admr. of ROY OXENDINE, Deceased; WILLIAM L OXENDINE and Wife, LOU HENRY LOWRY OXENDINE, JAMES W. OXENDINE and Wife, LOUISE SMITH OXENDINE (Additional Plaintiffs), v. H. S. LEWIS (Original Defendant), GERTRUDE MITCHELL HUNT and Husband, GRADDY HUNT, JAMES MITCHELL and Wife, MARGARET MITCHELL, ADDIE MAE MITCHELL BARNES and Husband, CLEVELAND BARNES, CLETUS MITCHELL PULOS and Husband, GEORGE PULOS, EARL RAY MITCHELL and Wife, LENA BELLE MITCHELL, BEARL DAVID MITCHELL and Wife, MARILYN MITCHELL, VARDELL OXENDINE and Wife, HELEN OXENDINE, JAMES CLEO FREEMAN, Unmarried, and LENA MAE FREEMAN, Unmarried, and W. H. HUMPHREY, JR., Guardian Ad Litem for JAMES CLEO FREEMAN and LENA MAE FREEMAN, Minors (Additional Defendants)
- Cited By
- 23 cases
- Status
- Published