Triplett v. Williams

• Decision Date: 09 December 1908
• Citation: 63 S.E. 79,149 N.C. 394
• Parties: TRIPLETT et al. v. WILLIAMS.
• Court: North Carolina Supreme Court

63 S.E. 79

149 N.C. 394

TRIPLETT et al. v. WILLIAMS.

Supreme Court of North Carolina

December 9, 1908

Appeal from Superior Court, Wilkes County; Murphy, Judge.

Action by Margaret Triplett and another against M. C. Williams. From a judgment for plaintiffs, defendant appeals. Reversed.

A married woman contracting to convey real estate, conveyed to her for life with remainder to her children, cannot compel specific performance without making her children parties.

W. W Barber, for appellant.

Hackett & Gilreath, for appellees.

BROWN J.

The title of the feme plaintiff Margaret depends upon what construction is given to a deed executed to her by John Greenwood and wife, dated May 30, 1885, containing the following premises: "Unto the said Margaret Greenwood and her heirs forever the following land"-followed after describing the land, by the following habendum "To have and to hold the same, together with all privileges and appurtenances thereto belonging to herself, the said Margaret Greenwood, during her lifetime, and at her death said land is to be equally divided between the children of said Margaret Greenwood." It is true, as contended, that, according to the common law as followed in previous decisions of this court, the plaintiff acquired a fee simple in the premises of the deed which could not be divested by the habendum. The habendum part of a deed was originally used to determine the interest granted, or to lessen, enlarge, explain, or qualify the premises. But it was not allowed to divest an estate already vested by the deed, and was held to be void if repugnant to the estate granted in the premises. 2 Bla. Com. 298; 4 Kent. Com. 468; Hafner v. Irwin, 20 N.C. 570, 34 Am. Dec. 390. We concede all that is contended for as to the common-law rule of construction, and that it has been followed in this state. But this doctrine, which regarded the granting clause, and the habendum and tenendum as separate and independent portions of the same instrument, each with its especial function, is becoming obsolete in this country, and a more liberal and enlightened rule of construction obtains, which looks at the whole instrument, without reference to formal divisions, in order to ascertain the intention of the parties, does not permit antiquated technicalities to override the plainly expressed intention of the grantor, and which does not regard as very material the part of the deed in which such intention is manifested. This is not only the decided trend of modern adjudication, but it is the legitimate and necessary result of legislation in this and other states.

In his work on Deeds, Mr. Devlin states the prevalent rule of construction as follows: "It may be formulated as a rule that, where it is impossible to determine from the deed and surrounding circumstances that the grantor intended the habendum to control, the granting words will govern; but if it clearly appears that it was the intention of the grantor to enlarge or restrict the granting clause by the habendum the latter must control." 1 Dev. on Deeds, § 215; Bodine v. Arthur, 91 Ky. 53, 14 S.W. 904, 34 Am. St. Rep. 162. In the above-cited case the Kentucky court states the proper rule of construction as follows: "It is undoubtedly true that in case of repugnancy between the two, and it cannot be determined from the whole instrument, with reasonable certainty, that the grantor intended that the habendum should control, the conveyancing clause must, for the reason that words of conveyance are necessary to the passage of the title, and the habendum is not ordinarily an indispensable part of a deed. Hence, in the case above indicated, the conveyancing clause must control. But where it appears from the whole conveyance and attending circumstances that the grantor intended the habendum to enlarge, restrict, or repugn the conveying clause, the habendum must control. It is in such case to be considered as an addendum or proviso to the conveyancing clause, which, by a well-settled rule of construction, must control the conveying clause or premises even to the extent of destroying the effect of the same. This is so, because it is the last expression of the grantor as to the conveyance which must control the preceding expression." See, also, Henderson v. Mack, 82 Ky. 379; Ratliffe v. Marrs, 87 Ky. 26, 7 S.W. 395, 8 S.W. 876; Fogarty v. Stack, 86 Tenn. 610, 8 S.W. 846. The Supreme Court of California says that: "For the purpose of ascertaining the intention the entire instrument, the habendum, as well as the premises, is to be considered; and, if it appears from such consideration that the grantor intended by the habendum clause to restrict or limit the...