Tankersley v. Davis
| Decision Date | 02 May 1928 |
| Docket Number | 390. |
| Parties | TANKERSLEY v. DAVIS et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Guilford County; Lyon, Emergency Judge.
Action by William Edward Tankersley, a minor, by his next friend, J W. Tankersley, against Mattie Bishop Davis and others. Judgment for defendants, and plaintiff appeals. Affirmed.
The facts are as follows: On November 12, 1923, J. C. Bishop executed and delivered to his daughter, Bonnie B. Tankersley a deed for a certain lot of land. The conveying clause of the deed was "unto the said party of the second part to have and to hold and then in remainder, as hereinafter set out and not otherwise." The habendum clause was "to the said party of the second part for and during the term of her natural life and thereafter to any child or children she may leave surviving her in fee, and in the event that any child or children she may have had born unto her shall have predeceased her, then the child or children of any dead child or children shall represent and take such interest and estate as his, her, or their parent or parents would have taken had he or she survived the party of the second part, and in the event that the said party of the second part shall leave no child or children nor the representative of such, surviving her, then to Mrs. Mattie V. Davis, wife of A. C. Davis," etc. The deed was duly recorded. The only children of the grantor, Bishop, at the time of making the deed, were Bonnie B. Tankersley and Mattie V. Davis. On the 6th day of April 1927, or about three and a half years after the registration of said deed, Bonnie B. Tankersley and her husband, J. W Tankersley, duly adopted a son of a deceased brother of J. W. Tankersley, the husband of Bonnie B. Tankersley, and said adopted child was not related by blood to Bishop, the grantor, or to Bonnie B. Tankersley, the grantee. The minor plaintiff had been living in the home of J. W. Tankersley and Bonnie B. Tankersley for several months prior to the date of the deed. Bonnie B. Tankersley had no children, and died on the 14th day of April, 1927. The plaintiff, the adopted child of Bonnie B. Tankersley, claims the property under the Bishop deed. The defendant Mattie Davis and her daughter Virginia Bishop Davis claim the property under the deed of Bishop.
The cause was submitted to the judge upon the foregoing facts, who was of the opinion, and so adjudged, that the title to said land is vested in Mattie Bishop Davis, and that the plaintiff was not entitled to the property, from which judgment plaintiff appealed.
Deed to grantee for life, with remainder to her surviving children and their issue in case children "born unto her shall have predeceased her," excluded grantee's adopted child.
Hines, Kelly & Boren, of Greensboro, for appellant.
King, Sapp & King, of Greensboro, for appellees.
The question is this: Under the deed of Bishop, who is entitled to the land, the adopted child of Bonnie B. Tankersley or the sister of Bonnie and the children of said sister?
C. S. § 185, provides, in substance, that, if the adoption is for life, the adopted child, by virtue of the adoption, is enabled "to inherit the real estate and entitle it to the personal estate of the petitioner in the same manner and to the same extent such child would have been entitled to if such child had been the actual child of the person adopting it," etc.
The question of inheritance is not involved in this case because the takers of the property hold under the deed of Bishop, and not by inheritance from Mrs. Tankersley. The inevitable trend of modern authority is to the effect that a deed must be construed in its entirety in order to ascertain the intention of the parties thereto, and neither "antiquated technicalities" nor strained construction are permitted to nullify the intention of the grantor. Triplett v. Williams, 149 N.C. 394, 63 S.E. 79, 24 L. R. A. (N. S.) 514.
The words of the deed "during the term of her natural life,...
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...v. Pridgen, 158 N.C. 337, 74 S.E. 335, in which the court was asked to overrule its decision in the Triplett Case, to Tankersley v. Davis, 195 N.C. 542, 142 S.E. 765, in which Brogden, J., citing Triplett v. Williams, said: inevitable trend of modern authority is to the effect that a deed m......
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