Helms v. Helms

• Decision Date: 26 April 1904
• Citation: 47 S.E. 415,135 N.C. 164
• Parties: HELMS v. HELMS et al.
• Court: North Carolina Supreme Court

47 S.E. 415

135 N.C. 164

HELMS v. HELMS et al.

Supreme Court of North Carolina

April 26, 1904

Appeal from Superior Court, Union County; Bryan, Judge.

Action by William L. Helms against Haney Helms and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Clark C.J., dissenting.

The refusal to submit questions of fact, whose answers could in no wise affect the result of the suit, is not error.

Adams Jerome & Armfield, for appellants.

Redwine & Stack, for appellee.

CONNOR J.

Elmira Helms, being the owner of an undivided one-sixth interest in the locus in quo, executed a deed on the 14th day of August 1897, to William L. Helms, conveying such interest to him, in consideration of "one dollar to her paid by William L. Helms, the receipt of which is hereby acknowledged, and the further consideration of the support during the natural life of the party of the first part." Following the covenant of warranty are these words: "And it is further understood and agreed between the parties that the above lands shall stand good for the support and maintenance of the said Elmira Helms during her natural life." This deed was recorded August 14, 1897. On the 17th of August, 1898, the said Elmira conveyed her one-sixth interest in a part of the land to Gabriel W. Helms. This interest was afterwards conveyed to defendant Haney Helms. Elmira died February 3, 1903. W. L. Helms on April 7, 1903, brought this special proceeding, making the other tenants in common parties defendant, for the partition of the land, claiming one-sixth interest therein by virtue of said deed from Elmira. The defendant Haney Helms filed a separate answer, denying that the said William L. owned any interest in the land, for that, in the execution of the deed, it was understood and agreed that the consideration thereof was the future support and maintenance of the said Elmira by him, and that he undertook and agreed that he would support her during her natural life, and, if he failed to do so, said deed would be void. He also says that such condition should have been inserted in the deed, but was omitted by ""inadvertence or otherwise" of the draughtsman; that he never supported the said Elmira, and disclaimed having any interest in said land. He sets up the deed from Elmira to Gabriel, and the heirs of Gabriel to himself, for her undivided interest in the land. He further says that the real owners of said land have made partition thereof and are in possession of their respective shares. He asks that the deed from Elmira to the plaintiff be canceled, etc. By an amended answer the defendant Haney says that the plaintiff failed and refused to support the said Elmira, and that in her last sickness she required attention, etc., amounting in value to $10 per month, and that by reason thereof the land became subject to a charge of several hundred dollars; that by the deed of Elmira to Gabriel Helms, and from the heirs of Gabriel to him, he is subrogated to the rights of Elmira "in and to the charge on the land for the support," etc., "of said Elmira"; and he hereby pleads the same as an estoppel or bar to any claim for the said land by the said W. L. Helms. The plaintiff filed a reply to the new matter set up in the answer, denying same. The cause was transferred to the civil issue docket for trial. The plaintiff tendered the following issue: "Is the plaintiff the owner and entitled to be let into possession of the one-sixth interest in the land described in the complaint?" The defendant tendered several issues directed to the inquiry whether there was an agreement between Elmira and W. L. Helms that the deed should be void if W. L. Helms failed to support said Elmira, and whether such agreement was omitted by the mutual mistake or ignorance of the parties or of the draughtsman; also whether W. L. Helms supported said Elmira, and the value of such support. His honor declined to submit the issues tendered by the defendant, and adopted that tendered by the plaintiff. Defendant excepted.

In respect to the first two issues tendered by the defendants, it is sufficient to say that, if found in the affirmative, such finding could not have affected the result or judgment. It would have amounted simply to a finding that the parties made an agreement and that they failed to insert it in the deed. The proposition is stated by the defendant when he placed M. L. Flow upon the stand, and proposed to prove by him that he "drew the deed, and that Elmira stated to W. L. Helms at the time, and before delivering the deed, that the deed should be void if W. L. Helms failed to provide for and take care of Elmira." There is no suggestion in the evidence offered that there was any agreement or understanding that the provision should be put in the deed, or that the draughtsman was instructed to do so. Green v. Sherrod, 105 N.C. 197, 10 S.E. 986, is exactly in point, as are also Norris v. McLam, 104 N.C. 159, 10 S.E. 140, and Frazier v. Frazier, 129 N.C. 30, 39 S.E. 634. If the deed had contained the words suggested, they would have constituted a condition subsequent. Could advantage have been taken of its breach by any one except the grantor, and is there any allegation that she did so? The exception to his honor's refusal to submit these issues cannot be sustained.

The other issues tendered were immaterial. The only questions upon which the decision of the cause depended are whether the words, "and for the further consideration of the support during the natural life of the party of the first part by the party of the second part," create a condition subsequent, and, if so, whether, in the light of the pleadings, the said Elmira availed herself of the breach, or whether her deed vested in the defendant the power to enter for condition broken. The defendant Haney Helms was introduced by the plaintiff. The defendants, upon cross-examination, proposed to show by him that the plaintiff never supported, cared for, or maintained Elmira in any way whatever, or contributed thereto, after the execution of the deed; that he admitted he did not claim any interest in the land in controversy; that such admissions were made before and after the death of Elmira; that in consequence of such statements he took the deed from the heirs of Gabriel Helms; that W. E. Williams and wife supported Elmira: that the plaintiff never took exclusive possession of said land, but simply went on the same to live with Elmira a short time after execution of the deed, and remained there only six months, and abandoned all claim to the land, etc. To all of this evidence the plaintiff objected, and upon the objection being sustained the defendant excepted. Defendant moved to dismiss the proceeding under the Hinsdale Act, and to his honor's refusal to allow the motion excepted. Defendant introduced M. L. Flow, and proposed to ask him the question hereinbefore set out; also, as to conversations with plaintiff in regard to the land, before and since the death of Elmira. All of this proposed evidence was, upon objection, excluded, and defendant excepted. The defendant offered to show by the tax list that plaintiff had not listed the land for taxes. This was excluded. Defendant renewed his motion to dismiss, and to his honor's refusal excepted. The court instructed the jury that if they believed the evidence, which was documentary, to answer the issue, "Yes," and to this the defendant excepted.

The defendant assigns a large number of errors. They all involve the same question, and must be disposed of upon the same principle. Does the language of the deed operate as a condition subsequent, the breach of which entitles the grantor to avoid the deed and divests the title out of plaintiff, or does it operate as a covenant to furnish support, a breach of which constitutes a charge upon the land? The rule of construction is thus stated: "Conditions subsequent are not favored in the law, and are construed strictly, because they tend to destroy estates." Kent's Com. (13th Ed.) *130. "If it be doubtful whether a clause in a deed be a covenant or a condition, the courts will incline against the latter construction; for a covenant is far preferable to the tenant." Id. *132. "A conveyance in consideration of support to be furnished the grantor or another person does not create a condition, unless apt words of condition are used; and even then it will not be held to create a condition, unless it is apparent from the whole instrument that a strict condition was intended." Jones, Law of Conveyances, p. 534, § 646.

In Laxton v. Tilley, 66 N.C. 327, the deed recited that it was made "for and in consideration of $200 and the faithful maintenance of T. L. and wife, P. L." Held that the maintenance was a charge upon the land. In McNeely v. McNeely, 82 N.C. 183, the land was devised "to my son Billy, at the death of his mother, by him seeing to her." It was held that the words "by him seeing to her" did not operate as a condition to terminate or impair his estate. Smith, C.J., says: "The words are in themselves vague and indefinite, and, if an essential and defeating condition of the gift, would be very difficult of application. What is meant by a 'seeing to' the widow, and what neglects fall short of that duty? *** And how is the dividing line to be run between such omissions as are, and such as are not, fatal to the devise? *** Titles would be rendered very precarious and uncertain if such matters in pais were allowed to defeat a vested estate." In Gray v. West, 93 N.C. 442, 53 Am. Rep. 462, the language was "that A. G. should have support out of the land." Held, that the support was a charge on the rents and profits. In Misenheimer v. Sifford, 94 N.C. 592, the devise was to A., "provided he maintain his mother during life...