Boyd v. Campbell

• Decision Date: 27 October 1926
• Docket Number: 580.
• Citation: Boyd v. Campbell, 192 N.C. 398, 135 S.E. 121 (N.C. 1926)
• Parties: BOYD v. CAMPBELL.
• Court: North Carolina Supreme Court

135 S.E. 121

192 N.C. 398

BOYD v. CAMPBELL.

No. 580.

Supreme Court of North Carolina

October 27, 1926

Appeal from Superior Court, Haywood County; Harding, Judge.

If A has children at time estate is conveyed to himself and children, he and children take as tenants in common.

Submission of controversy without action under C. S. § 626, between W. Pleas Boyd and V. A. Campbell. Judgment for plaintiff, and defendant appeals. Affirmed.

Submission of controversy without action. C. S. § 626. The plaintiff has been in the peaceable possession of three tracts of land since 1911, it being admitted that he is the owner of two of these tracts under a deed from his mother. On April 1, 1926 the plaintiff and the defendant entered into a written contract, by the terms of which the plaintiff was to convey to the defendant for the agreed consideration of $2,000 the three tracts referred to above; and on April 9th the plaintiff tendered to the defendant a deed in fee simple with the usual covenants, but the defendant refused to accept it or to pay the purchase price on the ground that the plaintiff could not convey a title in fee. There being no dispute as to the two tracts conveyed to the plaintiff by his mother, the controversy turns upon the construction of the deed hereinafter set out. If the plaintiff acquired a fee simple under this deed, he can convey a good title to the three tracts described in his contract. It is admitted that the plaintiff is the Pleas Clodfeler mentioned in the purported conveyance. The deed is as follows:

"State of North Carolina, _____ County:

"This deed made the 22 day of February 1910 by W. J. G. B. Boyd of Haywood County and State of North Carolina of the first part, to Pleas Clodfeler his children their heirs and then to his grandchildren forever of county and State of _____ of the second part witnesseth:

"That said Pleas Clodfelow for and in consideration of the sum of Five hundred dollars paid by the said Clodfelow to W. J. B. Boyd paid by and for the further consideration of love the receipt of which is hereby acknowledged ha-bargained and sold and by these presents do bargain, sell and convey to said the said Pleas Clodfellow his children and then to his grandchildren forever and heirs and assigns a certain tract or parcel of land in_____ Township Haywood County State of North Carolina, adjoining the lands of W J G B Boyd Thomas Evans and the Shelton Boys on the head water of Herseys Mill Creek one of Jonathan Creek tributary streams and others bounded as follows, viz. (description).

"To have and to hold the aforesaid tract or parcel _____ and all privileges and appurtenances thereto belonging 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.

"And the said W J G B Boud covenants that he is seized covenant to and with the said Pleas Clodfellow and his children during their natural lives and then to his grandchildren forever heirs and assigns _____ that _____ seized of said premises in fee and Ha_____ a right to convey the same in fee simple; that same are free from all incumbrances and that W G G B Boyd will warrant and defend the said title to the same against the claims of all persons whatsoever.

"In testimony whereof the said _____ has hereunto set _____ hand _____ and seal _____ the day and year first above written.

"W J G B Boyd [Seal.]

"Attest: J. A. Ferguson."

The plaintiff, when this deed was executed and delivered to him, was a single man and had no children. W. J. G. B. Boyd, the grantor, died in 1912, and in 1913 the plaintiff married and now has three young children, but no grandchildren.

The defendant contends that the deed is inoperative because there are no words of conveyance to the grantee; that the grantee conveyed from himself to himself, and in any event took a life estate with remainder to his children or grandchildren.

Upon the agreed facts it was adjudged that the plaintiff is the owner in fee of all the tracts and that the defendant must accept the deed tendered him and pay the purchase price.

Joseph E. Johnson, of Waynesville, for appellant.

Morgan & Ward, of Waynesville, for appellee.

ADAMS J.

The deed is not invalidated by the clause in which the grantee purports to convey to himself. In every conveyance of land there must be a grantor, a grantee, and a thing granted. The grantor cannot make himself the grantee; but W. J. G. B. Boyd, who signed the deed, is named as the grantor, and with the exception of this inadvertence the plaintiff is referred to as the grantee. The error is clerical, and the objection must be resolved against the appellant under the principle stated in Berry v. Cedar Works, 184 N.C. 187, 113 S.E. 772. See, also, Yates v. Insurance Co., 173 N.C. 473, 92 S.E. 356.

Whatever the former doctrine may have been the courts do not now regard with favor the application of such technical rules as will defeat the obvious intention of the parties to a deed, it being an elementary rule of construction that their intention as expressed in the deed shall prevail unless it is repugnant to the terms of the grant or is in conflict with some canon of construction or some settled rule of law. Seawell v. Hall, 185 N.C. 80, 116 S.E. 189; Lumber Co. v. Herrington, 183 N.C. 85, 110 S.E. 656; Pugh v. Allen, 179 N.C. 307, 102 S.E. 394; Williams v. Williams, 175 N.C. 160, 95 S.E. 157; Springs v. Hopkins, 171 N.C. 486, 88 S.E. 774.

As a rule if there are repugnant clauses in a deed the first will control and the last will be rejected. Fortune v Hunt, 152 N.C. 715, 68 S.E. 213; Wilkins v. Norman, 139 N.C. 40, 51 S.E. 797, 111 Am. St. Rep. 767; Blackwell v. Blackwell, 124 N.C. 269, 32 S.E. 676. While this rule is in subordination to the position that the intent of the parties as embodied in the entire instrument is the end to be attained, we must not lose sight of another principle; that is, that where rules of construction have been settled they should be...