Wilkins v. Norman

• Decision Date: 12 September 1905
• Citation: Wilkins v. Norman, 139 N.C. 40, 51 S.E. 797 (N.C. 1905)
• Parties: WILKINS et al. v. NORMAN.
• Court: North Carolina Supreme Court

139 N.C. 40

51 S.E. 797

WILKINS et al.

v.NORMAN.

Supreme Court of North Carolina.

Sept. 12, 1905.

Deeds—Repugnant Clauses.

A deed, after reciting the consideration, contained the usual operative words of conveyance, unto the grantee, "to him and his heirs, forever, " to have and to hold the premises, to him and his heirs and assigns, free and discharged of any and all incumbrances, in fee simple, forever; but after the covenant of warranty was a clause providing that, after the death of the grantee and his wife, the land should descend to their heirs, specified, to be equally divided between them. Held, that such clause was repugnant to the fee conveyed, both in the premises and the habendum of the deed, and was therefore void.

[Ed. Note.—For cases in point, see vol. 16, Cent. Dig. Deeds, §§ 267-273, 436-447.]

Appeal from Superior Court, Washington County; Ward, Judge.

Action by L. Wilkins and others against Anna Norman. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.

Benj. Phelps on October 2, 1872, executed a deed conveying the land in controversy to Berrick Norman. Following the recital of the consideration, etc., the deed contains the usual operative words of conveyance, "unto the said Berrick Norman, to him and his heirs and assigns, forever, " etc., "to have and to hold the said land and premises above described * * * to him, the said Berrick Norman, to him, his heirs and assigns, free and discharged of any and all incumbrances, in fee simple, forever." Following the usual covenant of warranty are the words, "and after the death of Berrick Norman and Moseller Norman, his wife, the lands and premises to descend to their heirs, Lad Wil-kins, Ellick Wilkins, and Susan Norman, and to be equally divided between the three heirs above mentioned." Berrick Norman and his wife, named in the deed, are dead. The plaintiffs are the same persons named in the last clause of the deed. The defendant is in possession. His honor, upon the foregoing facts, was of opinion that plaintiffs were not entitled to recover, and rendered judgment accordingly.

A. O. Gaylord, for appellants.

H. S. Ward, for appellee.

CONNOR, J. (after stating the case). We concur with his honor. The entire estate, in unmistakable terms, is given the grantee, both in the premises and the habendum. The warranty is in harmony with the preceding parts of the deed. Following the warranty there is introduced two entirely new clauses, both repugnant to the estate and interest conveyed. It is sought to make the wife of the grantee a tenant in common, and limit the estate to the life of the grantee and his said wife, and the survivor, giving, by way of remainder the fee, which had already been conveyed to the grantee, to the plaintiffs. The principle upon which such repugnant clauses in deeds have been disposed of by this court, following the most approved text writers, is thus stated by Daniel, J., in Hafner v. Irwin, 20 N. C. 570, 34 Am. Dec. 390: "In the case before us the whole interest in the property is granted and conveyed to the plaintiff in the premises of the deed. The same interest, being afterwards limited in the habendum to Curry, makes that part of the deed repugnant to the premises, and therefore void." That case was cited with approval by Faircloth, C. J., in Blackwell v. Blackwell, 124 N. C. 269, 32 S. E. 676, saying: "In the premises the fee is conveyed to the plaintiff, and afterwards a life estate to the defendant in the same lands. If the first intent, expressed in apt language and repeated in the...