Bryant v. Shields

• Decision Date: 07 January 1942
• Docket Number: 753.
• Citation: Bryant v. Shields, 220 N.C. 628, 18 S.E.2d 157 (N.C. 1942)
• Parties: BRYANT v. SHIELDS et al.
• Court: North Carolina Supreme Court

18 S.E.2d 157

220 N.C. 628

BRYANT v. SHIELDS et al.

No. 753.

Supreme Court of North Carolina

January 7, 1942

This was an action to determine the title to a certain lot of land on Main Street, in the city of Durham.

Amanda C. Smith, plaintiff's testatrix, was the wife of John W Smith. Plaintiff alleged that by deed of C. G. Ross an estate by the entireties in the lot described was created, and that upon the death of John W. Smith title to the lot vested in Amanda C. Smith by survivorship. The material parts of the deed are as follows:

"This deed, made this the 16th day of May, 1899, by C. C. Ross and wife, Nannie E. Ross, of Durham County and State of North Carolina, of the first part, to John W. Smith of Durham County and State of --, of the second part:

"Witnesseth that said C. G. Ross and wife, Nannie E. Ross, in consideration of Twelve Hundred and Fifty Dollars to them paid by John W. Smith, the receipt of which is hereby acknowledged, have bargained and sold, and by these presents do hereby bargain, sell and convey to said John W. Smith and his heirs and assigns, a certain tract or parcel of land in Durham County, State of North Carolina, adjoining the lands of Dr. A. G. Carr, F. C. Geer and others, bounded as follows viz: (Here follows description of the lot).

"To have and to Hold the aforesaid tract or parcel of land, and all appurtenances thereunto belonging to the said John W Smith and wife, Amanda C. Smith, and their heirs and assigns, to their only use and behoof forever."

John W. Smith died December 6, 1923. It appeared in evidence that in February, 1924, the executors and trustees under the will of John W. Smith instituted action asking the advice of the court as to their duty with respect to the real property of which John W. Smith died seized. Amanda C. Smith was made party to this action and filed no answer. Judgment was rendered as prayed. In August, 1924, Amanda C. Smith, who had dissented from the will, filed petition for the allotment of her dower as widow of John W. Smith in the lands of which he died seized. She alleged that he was owner in fee of several parcels of real property, which she described, including the lot now claimed by the plaintiff. The executors and heirs of John W. Smith were made parties. Judgment was rendered according to her petition, and the dower allotted to her included the lot in question. The dower allotment was duly confirmed by the decree of the court.

In March, 1925, in the action instituted February, 1924, hereinbefore referred to, motion was made by these defendants, who are the heirs of John W. Smith, for the discharge of the executors and trustees under the will of John W. Smith and for the conveyance to the defendants of the real property of John W. Smith. Amanda C. Smith was served with notice of the motion and filed answer admitting that she had taken dower in the lands of John W. Smith. Judgment was rendered in accordance with defendants' motion, and the executors and trustees were directed to convey to the defendants all the real property of John W. Smith, subject to the dower interest therein of Amanda C. Smith. Deed was executed as directed.

In 1929, Amanda C. Smith instituted action against these defendants, alleging that she was life tenant in the real property allotted to her as dower, and asking that defendants, remaindermen, be required to compensate her for improvements put on this property. She also asked for a sale of the lands. Defendants' demurrer was overruled and defendants appealed to the Supreme Court. The Supreme Court held she was not entitled to recover for improvements, as they were voluntarily made "and [she] knew she had only a life estate," but held she could maintain action for sale of the property for re-investment, upon proper showing. Smith v. Suitt, 199 N.C. 5, 153 S.E. 602, 604. Subsequently Amanda C. Smith took a nonsuit in that action.

Amanda C. Smith died March 5, 1939. In November, 1939, plaintiff, executor of her last will and testament, instituted this action claiming that she had acquired title in fee to this lot by survivorship, under the Ross deed. Defendants denied that Amanda C. Smith took any title under this deed, except right of dower, and further alleged that Amanda C. Smith and her executor were estopped by the judgments referred to.

Judgment of nonsuit was entered by the trial judge who based his ruling upon both grounds set up in the answer.

Plaintiff appealed.

Marshall T. Spears and John D. McConnell, both of Durham, for appellant.

Basil M. Watkins, of Durham, for appellees.

DEVIN Justice.

The court below ruled that plaintiff's action to establish title to the lot in question could not be maintained for two reasons, (1) because the deed to John W. Smith, upon which plaintiff based his claim, did not create an estate by the entireties so as to vest the title in Amanda C. Smith, the survivor, and (2) because in any event Amanda C. Smith was estopped by judgment from claiming title in fee. Plaintiff's appeal challenges the correctness of the court's ruling on both grounds.

1. The characteristics of an estate by the entireties were defined by Blackstone as follows: "If an estate in fee be given to a man and his wife they are neither properly joint tenants nor tenants in common; for the husband and wife being considered one person in law they cannot take the estate by moities, but both are seized of the entirety per tout et non per my, the consequence of which is that neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain in the survivor." 2 B1. 182. The incidents of this anomalous estate were discussed by Walker, J., in Moore v. Greenville Banking & Trust Co., 178 N.C. 118, 100 S.E. 269.

Did the Ross deed create an estate by the entireties in John W. Smith and Amanda C. Smith, his wife? The premises and the conveying clause of the deed designate the grantee as John W. Smith. The payment of the consideration by John W. Smith is acknowledged, and the conveyance is to John W. Smith and his heirs. In the habendum clause these words appear, "to the said John W. Smith and wife, Amanda C. Smith, and their heirs."

It may be observed that the technical rules anciently devised for the construction of the several parts of a deed are not to be strictly applied if to do so would defeat the obvious intention of the grantor. The principle is also established that for the purpose of ascertaining the intent of the maker all parts of the deed should be considered, but in doing so recognized canons of construction and settled rules of law may not be disregarded. Boyd v. Campbell, 192 N.C. 398, 135 S.E. 121; Heyer v. Bulluck, 210 N.C. 321, 186 S.E. 356; Williamson v. Cox, 218 N.C. 177, 10 S.E.2d 662.

It was said by Adams, J., in Benton v. Montgomery Lumber Co., 195 N.C. 363, 142 S.E. 229, that the entire deed must be considered and such construction of particular clauses adopted as will effectuate the intention of the parties, and that if terms are contradictory the first in order will be given effect to the exclusion of the last. "As a rule if there are repugnant clauses in a deed the first will control and the last will be rejected." Boyd v. Campbell, supra [192 N.C. 398, 135 S.E. 122]; Seawell v. Hall, 185 N.C. 80, 116 S.E. 189; 12 Am. Jur. 566; Wilkins v. Norman, 139 N.C. 40, 51 S.E. 797, 111 Am.St.Rep. 767.

The usual office of the habendum in a deed is to define the extent of the ownership in the thing granted to be held and enjoyed by the grantee (26 C.J.S., Deeds, § 22, p. 200, § 129, p. 431); to lessen, enlarge, explain or qualify the estate granted in the premises (Seawell v. Hall, 185 N.C. 80, 116 S.E. 189); but not to contradict or be repugnant to the estate granted therein (Bryan v. Eason, 147 N.C. 284, 61 S.E. 71), though the habendum clause may control if it clearly appears the grantor so intended. Seawell v. Hall, supra; 84 A.L.R. 1050.

Ordinarily, the habendum clause relates to the quantum of the estate, while the premises and the granting clauses designate the grantee and the thing granted. "The granting clause is the very essence of the contract," 16 Am.Jur. 567. Hence, where the name of the grantee, the thing granted and the quantum of the estate are clearly defined in the granting clause, the habendum clause is not essential to the validity of the deed, and in case of repugnancy is to be rejected, unless it appears from the four corners of the deed that it was the intention of the parties that it should control. 84 A.L.R., 1054; 111 A.L. R. 1078.

In Hafner v. Irwin, 20 N.C. 570, 34 Am. Dec. 390, the deed construed named one party as grantee, and in the habendum another party was named as trustee to effectuate the purposes expressed in the deed. It was held that the naming of a new grantee in the habendum could only be upheld "provided the estate given by the habendum to the new grantee was not immediate but by way of remainder." It was also said: "But it [the habendum] cannot perform the office of divesting an estate already vested by the deed; for it is void if repugnant to the estate granted in the premises." This statement of the law was cited and applied in Blackwell v. Blackwell, 124 N.C. 269, 32 S.E. 676. The distinction was stated by Ashe, J., in Blair v. Osborne, 84 N.C. 417, where it was held that one not named in the premises may, nevertheless, take an estate in remainder by limitation in the habendum; "that the habendum shall never introduce one who is a stranger to the premises to take as grantee, but he may take by way of remainder." This language was quoted with approval by Connor, J., in Condor v. Secrest, 149 N.C. 201, 62 S.E. 921.

In Triplett v. Williams, 149 N.C. 394, 63 S.E. 79, 24 L.R.A.,N.S.,...