Barrier v. Randolph
| Decision Date | 19 December 1963 |
| Docket Number | No. 243,243 |
| Parties | William Ray BARRIER, Helen C. Barrier, R. Maret Wheeler, and Elizabeth H. Wheeler, v. E. O. RANDOLPH, Mary I. Randolph and Alice E. Randolph. |
| Court | North Carolina Supreme Court |
John D. Shaw, Charlotte, for plaintiff appellants.
McDougle, Ervin, Horack & Snepp, and J. W. Kiser, Charlotte, for defendant appellees.
There has been no adjudication of the rights of the parties. The court did not enter final judgment but simply denied plaintiffs' motion for judgment on the pleadings. It is well established that an appeal does not lie from a denial of a motion for judgment on the pleadings. The proper practice was for plaintiffs to except to the court's denial of their said motion and bring forward this exception in the event of their appeal from an adverse final judgment. Howland v. Stitzer, 240 N.C. 689, 692, 84 S.E.2d 167; Garrett v. Rose, 236 N.C. 299, 304, 72 S.E.2d 843; Erickson v. Starling, 235 N.C. 643, 658, 71 S.E.2d 384, and cases cited; Gilliam v. Jones, 191 N.C. 621, 132 S.E. 566, and cases cited.
Plaintiffs' appeal must be dismissed as fragmentary and premature. Even so, in the exercise of our discretionary power (Cowart v. Honeycutt, 257 N.C. 136, 140, 125 S.E.2d 382; Hollingsworth GMC Trucks v. Smith, 249 N.C. 764, 768, 107 S.E.2d 746) we deem it appropriate to express an opinion upon one, but only one, of the questions plaintiffs have attempted to raise by their fragmentary and premature appeal.
The one question we consider is that raised by plaintiffs' contention that all the 'conditions, reservations and restrictions' set forth in the Randolph-Austin deed are repugnant to the granting, habendum and warranty clauses of said deed and therefore are surplusage and void ab initio. Plaintiffs base this contention upon Oxendine v. Lewis, 252 N.C. 669, 114 S.E.2d 706, asserting in their brief that 'the Oxendine Case is determinative of the controversy herein.'
The rule applied in Oxendine v. Lewis, supra, and in decisions cited therein, is stated by Parker, J., as follows: 'We have repeatedly held that when the granting clause, the habendum, and the warranty in a deed are 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.'
'In the interpretation of a deed, the intention of the grantor or grantors must be gathered from the whole instrument and every part thereof given effect, unless it contains conflicting provisions which are irreconcilable or a provision which is contrary to public policy or runs counter to some rule of law.' Lackey v. Hamlet City Board of Education, 258 N.C. 460, 462, 128 S.E.2d 806, 808, and cases cited; Rouse v. Strickland, 260 N.C. 491, 495, 133 S.E. 2d 151, and cases cited.
The sufficiency of the Randolph-Austin deed as a conveyance in fee simple of said 7.51-acre tract is not controverted. There is no contention it conveyed a life estate or other estate less than a fee simple
In express terms, the Randolph-Austin deed provides that it is made subject to the conditions, reservations and restrictions therein set forth and that such conditions, reservations and restrictions constitute covenants. Indeed, the portion of the deed in which these conditions, reservations and restrictions are set forth constitutes the greater part of the entire (including description) deed. The intention of the grantors that such conveyance is made subject to such conditions, reservations and restrictions is manifest. Moreover, '(i)t is a settled principle of law that a grantee who accepts a deed poll containing covenants or conditions to be performed by him as the consideration of the grant, becomes bound for their performance, although he does not execute the deed as a party.' Maynard v. Moore, 76 N.C. 158, 165; Herring v. Wallace Lumber Co., 163 N.C. 481, 485, 79...
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...v. Clark, 109 N.C.App. 379, 381, 427 S.E.2d 142, 143, cert. denied, 333 N.C. 795, 431 S.E.2d 31 (1993) (citing Barrier v. Randolph, 260 N.C. 741, 743, 133 S.E.2d 655, 657 (1963)). "An appeal from an interlocutory order is permitted, however, if such order affects a substantial right." Sherr......
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Cleveland Realty Co. v. Hobbs, 166
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