Peele v. Wilson County Bd. of Ed., 817SC680

• Decision Date: 06 April 1982
• Docket Number: No. 817SC680,817SC680
• Court: North Carolina Court of Appeals
• Parties: , 3 Ed. Law Rep. 763 Carlie PEELE and wife, Lessie Pace Peele, Berta Peele Flowers, Widow, John Vernon Peele, Jr. and wife, Frances Bryant Peele, Ruby Peele Williams and husband, Hulon Williams, William Roger Peele and wife, Nellie Smith Peele, Mildred Peele Morris and husband, Walter C. Morris, and Gretchen Peele Whitaker and husband, Merle Whitaker v. WILSON COUNTY BOARD OF EDUCATION and W. E. Edwards.

Page 890

289 S.E.2d 890

56 N.C.App. 555, 3 Ed. Law Rep. 763

Carlie PEELE and wife, Lessie Pace Peele, Berta Peele Flowers, Widow, John Vernon Peele, Jr. and wife, Frances Bryant Peele, Ruby Peele Williams and husband, Hulon Williams, William Roger Peele and wife, Nellie Smith Peele Mildred Peele Morris and husband, Walter C. Morris, and Gretchen Peele Whitaker and husband, Merle Whitaker v. WILSON COUNTY BOARD OF EDUCATION and W. E. Edwards.

No. 817SC680.

Court of Appeals of North Carolina.

April 6, 1982.

Kirby & Clark by J. Russell Kirby, Wilson, and Kirby, Wallace, Creech, Sarda & Zaytoun by David F. Kirby and Peter J. Sarda, Raleigh, for plaintiffs-appellants.

Rose, Jones, Rand & Orcutt by Z. Hardy Rose, Wilson, for defendant-appellee Wilson County Bd. of Ed.

HARRY C. MARTIN, Judge.

Plaintiffs contend that the manifest intention of the grantors in the deed to the school board limited the conveyance to a grant of less than fee simple and that "the trial judge erred by failing to consider all parts of the deed in determining the estate conveyed." Plaintiffs argue that the plain and express words indicate that the Peeles intended to grant a fee on condition subsequent.

Assuming, arguendo, that we adopt plaintiffs' position that the conditional provision in the deed must be given weight as an expression of the grantors' intent, we cannot agree that the provision has the effect of preserving in the grantors a right of entry for condition broken.

The future interest in real property known as the right of entry for condition broken arises after the creation of the possessory estate known as the fee simple estate subject to a condition subsequent. Typical language for the creation of a fee simple subject to a condition subsequent specifies that a grantee or devisee shall have a fee simple estate "on condition that," "provided that," but "to be null and void if" a certain event occurs, or to be forfeited upon the happening or failure of continuance of certain facts. This interest is the retention of a "right," or more accurately a "power," to re-enter the premises or to institute an action to terminate the grantee's or devisee's possessory estate when the forfeiting event occurs.

Webster, The Quest for Clear Land Titles--Whither Possibilities of Reverter and Rights of Entry, 42 N.C.L.Rev. 807, 810 (1964) (emphasis ours).

The provision upon which plaintiffs rely to establish their right to the property in question contemplates not an unconditional right to reenter the premises or even to institute an action to terminate the defendant school board's possessory estate, but rather gives them a preemptive right to purchase the property for a specified amount of money upon certain conditions. The language is inconsistent with any purported intent of the grantors to retain an interest in the property conveyed.

However, we reject plaintiffs' contention for more compelling reasons. The facts of this case fall squarely within the rule enunciated in Artis v. Artis, 228 N.C. 754, 761, 47 S.E.2d 228, 232 (1948), that "where the entire estate in fee simple, in unmistakable terms, is given the grantee in a deed, both in the granting clause and habendum, the warranty being in harmony therewith, other clauses in the deed, repugnant to the estate and interest conveyed, will be rejected." See also Whetsell v. Jernigan, 291 N.C. 128, 229 S.E.2d 183 (1976); Kennedy v. Kennedy, 236 N.C. 419, 72 S.E.2d 869 (1952).

We agree with plaintiffs that the above-mentioned rule is one of construction and not one of law, and that it does not place an absolute bar to a consideration of the grantors' intent. At the threshold of plaintiffs' argument is that the use of words "successors in office" renders the language in the deed less than clear to convey an estate in fee simple, thus requiring the court to look beyond the language to ascertain the grantors' intent. This contention was considered in College v. Riddle, 165 N.C. 211, 81 S.E. 283 (1914), in which the Court stated:

The original charter makes provision that it is to establish a female college, and for that purpose, among other things, may take, receive, and hold property, real and personal, which may be conveyed to said corporation or to said trustees and their successors for the use and benefit of the same, etc., and it is held with us and by the weight of authority elsewhere that the words of this habendum do not have the effect contended for by the defendant appropriating the specific property to school purposes, under condition subsequent, but, unless there is imperative and express provision to the contrary ... these and words of similar import shall be held to express only the purpose of the grantor in making the deed, and that as to third persons the power of the trustees or other...