Willis v. Mutual Loan & Trust Co.

• Decision Date: 05 April 1922
• Docket Number: 299.
• Parties: WILLIS ET AL. v. MUTUAL LOAN & TRUST CO.
• Court: North Carolina Supreme Court

111 S.E. 163

183 N.C. 267

WILLIS ET AL. v. MUTUAL LOAN & TRUST CO.

No. 299.

Supreme Court of North Carolina

April 5, 1922

Appeal from Superior Court, Robeson County; Connor, Judge.

Controversy submitted without action by Joe Willis and another against the Mutual Loan & Trust Company. Judgment for plaintiffs and defendant appeals. Reversed.

J. S J. Regan, unmarried and seized in fee, executed to his grantee a deed, the material parts of which are as follows:

"This deed, made this 31st day of January, 1882, by Joseph Samuel Jenkins Regan, of Robeson county, state of North Carolina to his daughter, Mary Regan, and her bodily heirs, of Robeson county and state of North Carolina.

Witnesseth, that said Joseph S. J. Regan for and in consideration of the sum of $1,000.00 doth bargain, sell and convey to said Mary Regan and her bodily heirs a tract or parcel of land in Robeson county,

To have and to hold the aforesaid tract or parcel of land and all privileges and appurtenances thereto belonging, to the said Mary Regan and her bodily heirs, and to their only use and behoof forever.

And the said J. S. J. Regan covenants that he is seized of said premises in fee and hath right to convey the same in fee simple, that the same are free from all incumbrances and that he will warrant and defend the said title to the same against the claims of all persons whatsoever, to his daughter, Mary Regan, and the heirs of her body, and if no heirs said lands shall go back to my estate."

On October 1, 1914, Mary Regan conveyed said land to Joe Willis, reserving a life estate; and on December 3, 1921, these two entered into a written agreement to convey to the defendant 50 acres of the land at the price of $3,400. Accordingly they tendered to the defendant a deed in fee duly executed, and demanded payment of the purchase price, and the defendant refused to make payment or to accept the deed on the ground that they cannot convey a title in fee simple. Mary Regan is now more than 70 years of age, and has never been married. His honor rendered judgment for the plaintiffs. The defendant excepted and appealed. The only question is whether Joe Willis and Mary Regan can convey a title in fee.

Johnson & Johnson, of Lumberton, for appellant.

McNeill & Hackett, of Lumberton, for appellees.

ADAMS J.

The plaintiffs contend that the deed should be considered with regard to its formal division into parts; that the last clause, because repugnant to the estate conveyed in the premises, is void, and in consequence that the grantor conveyed to Mary Regan an estate in fee. They rely in part upon the common-law principle that a fee acquired in the premises cannot be divested by the habendum. Blackstone says:

"The office of the habendum is properly to determine what estate or interest is granted by the deed, though this may be performed, and sometimes is performed, in the premises. In which case the habendum may lessen, enlarge, explain, or qualify, but not totally contradict or be repugnant to, the estate granted in the premises, as if a grant be 'to A. and the heirs of his body,' in the premises habendum 'to him and his heirs forever,' or vice versa; here A. has an estate tail, and a fee simple expectant thereon. But, had it been in the premises 'to him and his heirs,' habendum 'to him for life,' the habendum would be utterly void; for an estate of inheritance is vested in him before the habendum comes, and shall not afterwards be taken away or divested by it." 2 Bl. Com. 298.

And Coke:

"The habendum hath also two parts, viz. first, to name againe the feofee; and secondly, to limit the certaintie of the estate." 1 Coke, c. 1, § 1, 6a.

Originally used to determine the interest granted, or to lessen, enlarge, explain, or qualify the premises, the habendum was held to be void if repugnant to the estate vested by preceding parts of the deed. Hafner v. Irwin, 20 N.C. 570, 34 Am. Dec. 390; Triplett v. Williams, 149 N.C. 394, 63 S.E. 79, 24 L. R. A. (N. S.) 514. Whether this principle applied to a limitation in the warranty we need not now consider; for neither in the warranty nor in the habendum of this deed is there a fatal repugnancy, and the question presented must be resolved by other recognized rules of interpretation.

The plaintiffs can derive no aid from Shelley's Case. There being no limitation by way of remainder to the heirs or "bodily heirs" of Mary Regan as nomen collectivum, the deed in question cannot be construed as an unconditional fee. The distinction between a determinable fee and an estate created under the rule in Shelley's Case is clearly drawn in numerous decisions. Ward v. Jones, 40 N.C. 404; Whitesides v. Cooper, 115 N.C. 570, 20 S.E. 295; May v. Lewis, 132 N.C. 115, 43 S.E. 550; Smith v. Proctor, 139 N.C. 314, 51 S.E. 889, 2 L. R. A. (N. S.) 172; Puckett v. Morgan, 158 N.C. 344, 74 S.E. 15; Jones v. Whichard, 163 N.C. 241, 79 S.E. 503; Reid v. Neal, 182 N.C. 192, 108 S.E. 769.

The rigid technicalities of the common law have gradually yielded to the demand for a more rational mode of expounding deeds. Hence to discover the intention of the parties is now regarded as the chief essential in the construction of conveyances. The intention must be gathered from the whole instrument in conformity with established principles, and the division of the deed into formal parts is not permitted to prevail against such intention; for substance, not form, is the object sought.

If possible, effect must be given to every part of a deed, and no clause, if reasonable intendment can be found, shall be construed as meaningless. Springs v. Hopkins, 171 N.C. 486, 88 S.E. 774; Jones v. Sandlin, 160 N.C. 155, 75 S.E. 1075; Eason v. Eason, 159 N.C. 540, 75 S.E. 797; Acker v. Pridgen, 158 N.C. 337, 74 S.E. 335; Real Estate Co. v. Bland, 152 N.C. 231, 67 S.E. 483; Featherstone v. Merrimon, 148 N.C. 199, 61 S.E. 675; Gudger v. White, 141 N.C. 513, 54 S.E. 386.

The phrase "to Mary Regan and her bodily heirs," twice used in the premises and once in the habendum, is followed in the warranty by the words to "Mary Regan and the heirs of her body." What was the intention of the grantor? Obviously to limit over the grantee's estate in case she should die without issue or bodily heirs. To give to the deed such construction is not inconsistent with familiar principles of law.

"A conditional fee, at the common law, was a fee restrained to some particular heirs, exclusive of others, * * * as the heirs of a man's body. * * * Now, with regard to the condition annexed to these fees by the common law, our ancestors held that such a gift (to a man and the heirs of his body) was a gift upon condition that it should revert to the donor if the donee had no heirs of his body; but, if he had, it should then remain to the donee. They therefore called it a fee simple, on condition that he had issue." 2 Bl. Com., 110. "Which condition was implied in the words as well as in the intent; for in that the gift is to one and to his heirs of his body, and no further, therein it is implied that, if he have no heirs of his body, the donor shall have the land again." Willion v. Berkley, Plowd. 235.

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