Dail v. Jones

• Citation: 85 N.C. 221
• Court: North Carolina Supreme Court
• Decision Date: 31 October 1881
• Parties: OWEN W. DAIL v. JULIA A. JONES.

85 N.C. 221

OWEN W. DAIL

v.JULIA A. JONES.

Supreme Court of North Carolina.

October Term, 1881.

CLAIM AND DELIVERY tried at Spring Term, 1881, of GREENE Superior Court, before Graves, J.

This is an action of claim and delivery, brought to recover certain articles of personal property from the possession of the defendant, who claims to hold the same as administratrix of Owen W. Jones, deceased.

The plaintiff claims it under a deed to himself and wife from the defendant's intestate, the conveying clause of which is as follows: “And the party of the first part doth also, in consideration as before stated (natural love and affection) and the further consideration of the sum of one dollar, to him in hand paid by the parties of the second part, the receipt whereof is hereby acknowledged, give, grant, bargain, sell and convey unto the party of the second part, all the household and kitchen furniture, to be theirs at his death, to have and to hold,” &c.

On the trial in the superior court the plaintiffs offered to show by the subscribing witness to the deed, that at the time of its execution the grantor put the property conveyed into the possession of the plaintiff, but upon the objection of the defendants, the evidence was excluded, and the plaintiff excepted.

His honor being of opinion that the grantor had reserved to himself a life estate in the property mentioned in the deed, and that the plaintiff could take nothing therein by way of remainder after such life estate, directed a verdict to be entered for the defendant, to which the plaintiff excepted.

There was a verdict and judgment in favor of defendant and the plaintiff appealed.

Messrs. W. C. Munroe, and Battle & Mordecai, for plaintiff .

No counsel for defendant.

ASHE, J.

The first exception taken to the ruling of His Honor was to his refusal to admit evidence on the part of the plaintiff to prove an actual delivery of the property conveyed in the deed by the grantor to the plaintiff, the grantee, at the time of executing the deed. This evidence was offered to show that the grantor intended by the deed to convey a present interest to the plaintiff and his wife, and for that purpose was clearly incompetent because it would contradict the deed, and the deed must speak for itself; it cannot be added to, varied or contradicted by parol evidence. Wilson v. Sandifer, 76 N. C., 347. The deed in this case conveyed the property to the grantees to be theirs on the death of the grantor, but the parol evidence offered was to show that the property was to be theirs immediately upon the execution of the deed.

The next exception by defendant was to the ruling of His Honor “that by the deed the grantor reserved to himself a life estate in the property, and that the grantees could take nothing in remainder.”

The grounds taken in support of this exception were, first, because the premises of the deed completely disposes of the property before the phrase which it is insisted reserves a life estate to the donor. The words of the deed being, “and the party of the first part doth also, in consideration of one dollar to him in hand paid by the party of the second part, the receipt whereof is hereby acknowledged, give, grant, bargain, sell and convey, unto the party of the second part all his household and kitchen furniture to be...