Fortune v. Hunt

• Decision Date: 27 May 1910
• Citation: Fortune v. Hunt, 152 N.C. 715, 68 S.E. 213 (N.C. 1910)
• Court: North Carolina Supreme Court
• Parties: FORTUNE v. HUNT et al.

68 S.E. 213

152 N. C. 715

FORTUNE

v.HUNT et al.

Supreme Court of North Carolina.

May 27, 1910.

1. Deeds (§ 129^*)—Construction—Interest Conveyed.

A deed stated that in consideration of $800 the grantor conveyed the property specified to the grantee named, who was the widow of the grantor's son, "during her widowhood, then to her children, the heirs of said son. The grantor warranted the premises to said grantee "during her lifetime or widowhood, then to the said heirs of her husband (the grantor's son) forever, in the following manner, to wit. William Hunt is to pay $50 to E. S. Hunt, $50 to John Hunt, and $5 to Collace Hunt, and to the heirs of my daughter Elizabeth Hunt, namely, Alsaline and Sarah Hunt, $50. The above obligation being filled, the lands above described to belong to William Hunt and his heirs, forever." Held, that the deed should be construed as giving the widow a life estate, with remainder in fee to her children who were the children of the grantor's son, and as charging the interest of one of the children, William Hunt, with the payment of $155.

[Ed. Note.—For other cases, see Deeds, Cent. Dig. §§ 360-364; Dec. Dig. § 129.*]

2. Deeds (§ 97^2-*)—Construction—Repugnant Clauses.

If there are repugnant clauses in a deed, the first clause will control.

[Ed. Note.—For other cases, see Deeds, Cent. Dig. § 269; Dec. Dig. § 97.*]

3. Appeal and Error (§ 984*)—Orders Reviewable^—Taxation op Costs.

Under Revisal 1905, § 1268(7), providing that all costs and expenses in partition proceedings, whether by sale or actual division, shall be taxed against either party or apportioned among the parties in the discretion of the court, taxation of costs in partition proceedings is irreviewable.

[Ed. Note.—For other cases, see Appeal and Error, Cent.Dig. §§ 3881. 3882; Dec. Dig. § 984.*]

Appeal from Superior Court, Rutherford County; J. S. Adams, Judge.

Action by Mrs. M. E. Fortune against Hal Hunt and others. Judgment for plaintiff, and defendants appeal. Affirmed.

See, also, 149 N. C. 358, 63 S. E. 82.

J. M. Carson, for appellants.

McBrayer & McBrayer, for appellee.

CLARK, O. J. This is a petition for partition, transferred upon "issue of title" joined to the superior court. The deed executed in 1870 recites that in consideration of $800 the grantor conveys the property to "Elizabeth Hunt" (who was the widow of grantor's son, Alferia Hunt) "during her widowhood, then to her children, the heirs of said Alferia Hunt." Said children took "as heirs" in fee simple, for in the warranty clause the grantor warrants the premises to "said Elizabeth Hunt during her lifetime or widowhood, then to the said heirs of her husband, Alferia Hunt, forever, in the following manner, to wit: William Hunt is to pay $50 to E. S. Hunt, $50 to John Hunt, $5 to Collace Hunt, and to the heirs of my daughter Elizabeth Hunt, namely Alsaline and Sarah Hunt, $50. The above obligation being filled the lands above described to belong to William Hunt and his heirs, forever."

It will be noted that the life tenant paid $800. It is to be presumed that the remainder, given by the grantor to his grandchildren, was worth much more. It is unreasonable to suppose that the grant to them in the conveying clause is revoked by the warranty clause, or that immediately after the warranty clause warrants the premises to "the heirs of Alferia Hunt, forever, " it should immediately deprive them of it in favor of William Hunt upon payment by him to Collace Hunt of $5, on payment to A. W. Hunt of nothing, on payment to Elizabeth Hunt of $50, and $50 to her daughters. It is true that the warranty, clause says that on payment of above sums "the lands above described to belong to William Hunt and his heirs, forever." But this is strictly construed, au pied du lettre, it gave to William Hunt the life estate of the widow as well as all the five shares of the...