Minor v. Minor, 456

• Decision Date: 22 November 1950
• Docket Number: No. 456,456
• Citation: 62 S.E.2d 60,232 N.C. 669
• Court: North Carolina Supreme Court
• Parties: MINOR et ux. v. MINOR et ux.

Page 60

62 S.E.2d 60

232 N.C. 669

MINOR et ux. v. MINOR et ux.

No. 456

Supreme Court of North Carolina.

Nov. 22, 1950

Sam J. Morris, Raleigh, for plaintiffs, appellees.

Ellis Nassif, Raleigh, for defendants, appellants.

ERVIN, Justice.

Under the allegations of the complaint, the judicial admissions of the defendants at the trial, and the answers to the first and second issues, the plaintiffs were entitled to have the court reform the deed by inserting in it the omitted agreement of the parties requiring the male defendant to support the plaintiffs for the remainder of their lives. Cuthbertson v. Morgan, 149 N.C. 72, 62 S.E. 744. Instead of entering a judgment of reformation, however, the court decreed that the conveyance should be cancelled in its entirety. The defendants challenge the propriety of this action by an appropriate exception to the judgment.

It is a common practice in this State for a person to convey his real property to another in consideration of a promise by the latter to furnish him with support for the remainder of his life. In such case, the agreement of the grantee to support the grantor is a valuable consideration for the transfer of the property. Lee v. Ledbetter, 229 N.C. 330, 49 S.E.2d 634; Ayers v. Banks, 201 N.C. 811, 161 S.E. 550; Salms v. Martin, 63 N.C. 608.

A provision in a deed for the support of the grantor by the grantee may constitute a mere covenant, or operate as a condition, depending solely upon the expressed intention of the parties to the conveyance. Thus the language employed in a particular instrument may make the performance of the promise of the grantee to support the grantor a condition precedent to the vesting of the estate, Cox v. Hinshaw, 226 N.C. 700, 40 S.E.2d 358, or a condition subsequent for which the estate might be divested. Barkley v. Thomas, 220 N.C. 341, 17 S.E.2d 482; Huntley v. McBrayer, 169 N.C. 75, 85 S.E. 213; Britton v. Taylor, 168 N.C. 271, 84 S.E. 280.

But the law does not favor either the postponement of the vesting of estates by conditions precedent, or the destruction of estates already vested by conditions subsequent. In consequence, courts will construe the words of a deed requiring the grantee to support the grantor to create a mere covenant rather than a condition, if they will reasonably admit of such interpretation. Helms v. Helms, 135 N.C. 164, 47 S.E. 415, rehearing denied in 137 N.C. 206, 49 S.E. 110.

Where an agreement of the grantee to support the grantor as stated in the deed, or in another instrument executed in consideration of the deed, is simply a covenant, it falls into one of three legal categories, depending entirely upon the expressed intention of the parties. Marsh v. Marsh, 200 N.C. 746, 158 S.E. 400. A covenant of the first class imposes upon the grantee a mere personal obligation to support the grantor. Higgins v. Higgins, 223 N.C. 453, 27 S.E.2d 128; Bailey v. Federal Land Bank, 217 N.C. 512, 8 S.E.2d 614; Hart v. Dougherty, 51 N.C. 86; Taylor v. Lanier, 7 N.C. 98, 9 Am. Dec. 599. A covenant of the second class makes the obligation of the grantee to support the grantor a charge or lien on the rents and profits from the land conveyed. Wall v. Wall, 126 N.C. 405, 35 S.E. 811. A covenant of the third class makes such obligation a charge or lien on the land itself. Marsh v. Marsh, supra; Fleming v. Motz, 187 N.C. 593, 122 S.E. 369; Bailey v. Bailey, 172 N.C. 671, 90 S.E. 803; Helms v. Helms, supra; Laxton v. Tilly, 66 N.C. 327.

The distinction between conditions and covenants becomes important in determining the remedy available to a grantor whose grantee has breached the agreement to furnish support. It is settled law in this jurisdiction that the nonperformance by the grantee of an agreement to support the grantor does not authorize the cancellation of the deed made in consideration of the agreement, unless the performance of the agreement is made a condition precedent to the vesting of the estate, or a condition subsequent for which the estate might be divested. Helms v. Helms, supra. The rule in respect to covenants is epitomized in this headnote to a decision handed down exactly one hundred years ago: 'Where the feme plaintiff had conveyed her estate in dower to the defendant, and he had covenanted, in consideration thereof, to support her, Held, that, if he failed to do so, she could not set aside the whole contract, but must resort to her remedy at law for damages.' Murray v. King, 42 N.C. 19

The reasoning underlying this principle is well stated by the Supreme Court of Alabama in these words: 'The first ground is obviously wanting in merit. The fact that J. C. Knight (the grantee) failed to carry out his undertaking, or that both he and his wife failed and refused to carry out the undertaking, in consideration of which the conveyance was made, is no ground for the cancellation of the conveyance. The undertaking was in no sense a condition subsequent, upon the breach of which the conveyance was void or voidable, but, at...