McCotter v. Barnes

• Decision Date: 10 January 1958
• Docket Number: No. 91,91
• Citation: 247 N.C. 480,101 S.E.2d 330
• Court: North Carolina Supreme Court
• Parties: D. C. McCOTTER, Sr., J. Muse McCotter and D. C. McCotter, Jr., Trading as D. C. McCotter & Son, v. Hugh H. BARNES and H. Foley Barnes.

Page 330

101 S.E.2d 330

247 N.C. 480

D. C. McCOTTER, Sr., J. Muse McCotter and D. C. McCotter Jr., Trading as D C. McCotter & Son, v. Hugh H. BARNES and H. Foley Barnes.

No. 91

Supreme Court of North Carolina.

Jan. 10, 1958

Barden, Stith & McCotter, New Bern, for plaintiffs, appellants.

Robert G. Bowers, Bayboro, and Sam J. Morris, Raleigh, for defendants, appellees.

JOHNSON, Justice.

The only question for decision is this: Did the deed made by A. P. Barnes and wife to the Carolina Land and Improvement Company convey fee-simple title or only an easement in the strip of land in controversy?

If the deed conveyed only an easement, the estate of the railroad company ceased and terminated when its tracks were removed and the railroad was abandoned, and the defendants, having succeeded to the rights of A. P. Barnes, would be entitled to an affirmance of the judgment below. On the other hand, if the deed conveyed the strip of land in fee simple, title has passed to the plaintiffs by mesne conveyances from the grantee of Barnes, and the judgment below should be reversed.

Manifestly the deed is a railroad-purpose deed. At the time of its execution the general powers of railroad corporations were prescribed by Chapter 138, Public Laws of 1871-1872. The pertinent parts of this Act, then codified as Sections 1957(2) and (3) of the Code of 1883, now codified as G.S. § 60-37, provided that 'Every railroad corporation shall have power: * * (3) To Take Property by Grant.--To Take and hold such voluntary grants of real estate and other property as shall be made to it to aid in the construction, maintenance and accommodation of its railroad; but the real estate received by voluntary grant shall be held and used for the purposes of such grant only. 4. To Purchase and Hold Property.--To purchase and hold and use all such real estate and other property as may be necessary for the construction and maintenance of its railroad and the stations and other accommodations necessary to accomplish the object of its incorporation.'

The instant deed is a regular form deed of bargain and sale. It recites a valuable consideration. Upon the facts agreed and on this record, the deed is presumptively a deed of purchase within the meaning of the section of the Act of 1871-1872 now codified as G.S. § 60-37(4). This being so, the deed must be interpreted as an ordinary deed. When this is done, it is manifest that the deed conveys title in fee simple:

The granting clause in the Barnes deed conveys an unqualified fee-simple estate: 'That the said parties of the first part for and in consideration of the sum of Two (2.00) Dollars, to them in hand this day paid by said party of the second part, the receipt of which is hereby forever admitted, released and remised, have given, granted, bargained and sold and by these presents do hereby give, grant, bargain and sell unto the party of the second part, its successors and assigns, a tract or parcel of land 100 feet in width to be cut out of the following described tract of land situated lying and being in the county and State aforesaid and in No. 3 township adjoining the lands of C. A. Flowers, S. H. Muse and others. * * *'

The habendum clause places no limitation on the estate in fee conveyed by the granting clause: 'To Have And To Hold, the aforesaid tract or parcel of land as above described together with all the rights, ways, privileges and easements thereunto belonging or in anywise appertaining unto it the said party of the second part its successors and assigns.'

The covenants of seizin and warranty harmonize with the fee previously granted: 'And the said parties of the first part on behalf of themselves their heirs and assigns hereby covenant to and with the said party of the second part on behalf of itself, its successors and assigns as follows, to wit: 1st. That they are seized of the said property above conveyed in fee. * * * 3rd. That they will forever warrant and defend the title to the said land against the lawful claims of any and all persons Claiming by Through or Under Them.'

Since all the operative clauses of the deed refer to a fee-simple estate, without restriction or limitation, it necessarily follows that no ambiguity or contradiction is disclosed by these clauses. Hence, as to these clauses there is no need for application of the ordinary rules of construction. Jackson v. Powell, 225 N.C. 599, 35 S.E.2d 892.

Moreover, the plaintiffs' contention that the Barnes deed conveyed a fee is supported by Ch. 148, Public Laws of 1879, now codified as G.S. § 39-1, which provides that a conveyance shall be construed to be a conveyance in fee unless 'such conveyance in plain and express words shows, or it is plainly intended by the conveyance or some part thereof, that the grantor meant to convey an estate of less dignity.'

We have given consideration to the defendants' contention that the use of the term 'right of way' in the description limits the conveyance to an easement. The contention is untenable. The term 'right of way' has a two-fold meaning: it may be used to designate an easement, and, apart from that, it may be used as descriptive of the use or purpose to which a strip of land is put. It is a matter of common knowledge that the strip of land over which railroad tracks run is often referred to as the 'right of way,' with the term being employed as merely descriptive of the purpose for which the property is used, without reference to the quality of the estate or interest the railroad company may have in the strip of land. 77 C.J.S. 394. Here, we think the term 'right of way' was used as merely descriptive of the purpose to which the land was to be put, and was not intended to cut down to an easement the fee conveyed in the granting clause. Annotation: 132 A.L.R. 142, 150. But in any event, under application of the rule of construction that the granting clause will prevail in case of repugnancy, the term 'right of way' as here used in the description must yield to the granting clause in fee, and especially so in view of the fact that the granting clause harmonizes with the habendum and with the covenants of seizin and warranty. Artis v. Artis, 228 N.C. 754, 47 S.E.2d 228; Jeffries v. Parker, 236 N.C. 756, 73 S.E.2d 783; Griffin v. Springer, 244 N.C. 95, 92 S.E.2d 682; Edwards v. Butler, 244 N.C. 205, 92 S.E.2d 922.

In Artis v. Artis, supra, 228 N.C. at page...