Buckner Et Ux v. Hawkins, 100.
| Decision Date | 09 March 1949 |
| Docket Number | No. 100.,100. |
| Citation | 230 N.C. 99,52 S.E.2d 16 |
| Court | North Carolina Supreme Court |
| Parties | BUCKNER et ux. v. HAWKINS et al. |
Appeal from Superior Court, Buncombe County; Zeb V. Nettles, Judge.
Action by Claud L. Buckner and wife against DeFoix W. Hawkins and wife, individually and others, for specific performance of contract to purchase realty. Judgment for plaintiffs, and defendants appeal.
Judgment affirmed.
Controversy without action submitted pursuant to provisions of G.S. § 1-250.
The salient facts pertinent to the controversy involved on this appeal, as set forth in the agreed statement of facts, may be summarized as follows I. On 14 December, 1948, plaintiffs Claud L. Buckner and his wife, Mary Buckner, and defendants DeFoix W. Hawkins and wife, Jean Hawkins, entered into a written contract for the sale by the Buckners, and the purchase by the Hawkins of that certain piece or parcel of improved real estate situate in the city of Asheville, County of Buncombe, State of North Carolina, described as the property devised to said Claud L. Buckner in and by Clause Twenty-Second of the last will and testament of Oliver D. Revell, deceased, duly probated, and recorded in the will records of said county, --it being agreed that Oliver D. Revell died seized of said real estate, in fee simple and free and clear of all liens and encumbrances.
II. Clause Twenty-Second of the last will and testament of Oliver D. Revell, deceased, under which Claud L. Buckner claims title, reads as follows:
III. Plaintiffs contend that, under the provisions of said Clause Twenty-Second, as set forth in preceding paragraph, Claud L. Buckner acquired a fee simple title to said real estate, in that any restrictions contained in said clause against the transfer ofthis property by Claud L. Buckner are inconsistent-with the fee simple estate devised to him by said clause of said will, and are, therefore, contrary to law and void; and, hence, the deed duly executed by plaintiffs, and tendered to defendants, being sufficient in form, conveys a good and merchantable title in fee simple. On the other hand, defendants Hawkins contend that Claud L. Buckner did not acquire, and is unable to convey such title, and for this reason refuse to accept the deed for, and pay the purchase price of said land.
IV. The defendants James L. Wagner, Edgar J. Duckworth, J. D. Ray and W. T. Duckworth, as trustees of the residuary estate of said Oliver D. Revell, join in the contentions of defendants Hawkins for the purpose of protecting such interest, if any, as the estate of Oliver D. Revell, deceased, may have in said property.
The court, being of opinion and holding (1) that the personal restraints against the alienation of the property, the subject of this controversy are contrary to law and void, (2) that defendants, trustees, have no interest in or legal claim to said property; and (3) that plaintiffs are seized in fee of said property, and are able to convey same in fee, ordered defendants Hawkins to perform their contract of purchase of said real estate.
All defendants appeal therefrom to Supreme Court and assign error.
Adams & Adams, of Asheville, for plaintiffs-appellees.
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Buckner v. Hawkins
... ... about 60 feet on Pearson Drive and a depth of 118 feet back ... to the East line of said lots; excepting and reserving from ... this bequest five (5) feet running Eastwardly and Westwardly ... along the North line of said lot; which said strip is hereby ... [230 N.C. 100] bequeathed to H. W. Brooks and Kathleen ... Brooks. This property not to be mortgaged, sold or disposed ... of during the life of said Claud L. Buckner. Also to the said ... Claud L. Buckner and his mother, jointly, I bequeath anything ... they may owe to me on their house on Ora Street, in ... ...
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Coffield v. Peele, 27
...alone, constitute a clear devise of the real property in fee simple to the testator's seven children. G.S. § 31-38; Buckner v. Hawkins, 230 N.C. 99, 52 S.E.2d 16; Elder v. Johnston, 227 N.C. 592, 42 S.E.2d 904; Roane v. Robinson, 189 N.C. 628, 127 S.E. 626. Certainly, no parts of the will, ......
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Woodard v. Clark
...less dignity', G.S. § 31-38, and a devise generally or indefinitely, standing alone, constitutes a devise in fee simple. Buckner v. Hawkins, 230 N.C. 99, 52 S.E.2d 16, and cases cited. But here the devise was made 'subject to the other provisions of my Will, both hereinbefore and hereinafte......
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Langston v. Wooten, 388
...power of alienation, annexed to a grant or devise in fee, is void. Johnson v. Gaines, 230 N.C. 653, 55 S.E.2d 191; Buckner v. Hawkins, 230 N.C. 99, 52 S.E.2d 16; Beam v. Gilkey, 225 N.C. 520, 35 S.E.2d 641; Douglass v. Stevens, 214 N.C. 688, 200 S.E. 366; Norwood v. Growder, 177 N.C. 469, 9......