Opinion
No. 42
Filed 4 November 1976
1. Deeds 12, 15 — 1884 deed — reversion clause after description — ineffectiveness A clause in an 1884 deed providing for reverter of title to the grantors is not valid and effective when it appears only at the end of the description and is not referred to elsewhere in the deed.
2. Deeds 12 — inconsistent clauses in deed — construction — conveyance after 1 January 1968 — effect of G.S. 39-1.1 Conveyances executed after 1 January 1968 in which there are inconsistent clauses shall be construed in accordance with G.S. 39-1.1 so as to effectuate the intent of the parties as it appears from all the provisions of the instrument so long as such construction does not prevent the application of the rule in Shelley's case; however, G.S. 39-1.1 does not apply to conveyances executed prior to 1 January 1968, and such conveyances will be construed in accordance with the principles enunciated in Artis v. Artis, 228 N.C. 754 and Oxendine v. Lewis, 252 N.C. 669.
ON petition for discretionary review of the decision of the Court of Appeals, reported in 29 N.C. App. 136, 223 S.E.2d 397 (1976), which reversed the summary judgment for defendant entered by Griffin, J., at the September 1975 Regular Session of WAYNE Superior Court.
Kornegay, Bruce Rice by G. R. Kornegay, Jr., and Robert T. Rice for plaintiff appellees.
Smith, Everett Womble by James N. Smith and James D. Womble, Jr., for defendant appellants.
Justice COPELAND dissenting.
Plaintiffs, trustees of Salem Advent Christian Church, brought this action to have the church declared the sole owner of a one-acre lot conveyed by deed dated 17 November 1884 from D. E. Newell and wife, Nancy Newell, and Mary Newell to the Second Advent Baptist Church. Plaintiffs alleged that the church is the successor to the original grantee, Second Advent Baptist Church.
Defendants claim ownership under a clause in the 1884 deed which appears to be a part of the description:
". . . thence north 70 yards to the begin., containing one acre more or less — Now the condition of this deed is that if the said denomination of the Second Advent Baptist Church fail to build a church house, or if said denomination change their name, or if they fail to occupy said land with a church for a space of three years then said land is to return back to the parties of the first part or their legal representatives." (Emphasis added.)
The granting clause in the deed conveyed an unqualified fee and the habendum contains no limitation on the fee thus conveyed and a fee simple title is warranted in the covenants of title. The italicized portion of the description does not appear and is not referred to in any other part of the deed.
Defendants alleged that around 1969 Second Advent Baptist Church changed its name to Salem Advent Christian Church and that the Salem Advent Christian Church has failed to occupy the land with a church for a period of three years. These facts do not appear to be controverted.
Each party filed a motion for summary judgment. After a hearing and argument by counsel for both parties, the trial judge concluded that the language imposing conditions on the conveyance was legally effective and imposed certain conditions on the title conveyed by the deed. The trial judge further found that the grantee, Salem Advent Baptist Church, had breached the conditions imposed and therefore defendants were entitled to entry and possession of the lot. He further concluded that title vested in Gladys Jernigan, sole heir of the grantor, and thereupon entered summary judgment for defendants.
Plaintiffs appealed and the Court of Appeals reversed. We allowed petition for discretionary review on 9 April 1976.
The sole question for decision is whether a clause in a deed providing for a reverter of title to the grantors is valid and effective when it appears only at the end of the description and is not referred to elsewhere in the deed. The Court of Appeals held that it was not effective. We agree.
In Artis v. Artis, 228 N.C. 754, 47 S.E.2d 228 (1948), the plaintiff claimed title to certain land under a deed in which the granting clause conveyed a fee simple and the habendum and warranty clauses were in accord. However, following the description in the deed, a clause appeared which plaintiff contended gave defendant a life estate and not a fee in a certain piece of land. The Court held that a fee was conveyed. In so holding, the following rule was stated:
"Hence it may be stated as a rule of law 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." 228 N.C. at 761, 47 S.E.2d at 232.
In arriving at the rule, the Court reviewed much of the prior law relating to the construction of deeds which contained contradictory clauses. In Blackwell v. Blackwell, 124 N.C. 269, 32 S.E. 676 (1899), the Court formulated the rule that the essence of the deed is the granting clause and that when two clauses in a deed are repugnant to each other, the clause appearing first in a deed shall control the interpretation of the deed. The reason for this rule was enunciated in Rowland v. Rowland, 93 N.C. 214 (1885), in which it was stated that once an estate was vested in a grantee by the premises or the granting clause of a deed, a later clause could not divest the grantee of the first estate conveyed. See also 2 W. Blackstone, Commentaries 298 (Christian ed. 1794).
The rule stated in Artis has been applied in numerous subsequent decisions of this Court. See, e.g., Oxendine v. Lewis, 252 N.C. 669, 114 S.E.2d 706 (1960); Whitson v. Barnett, 237 N.C. 483, 75 S.E.2d 391 (1953); Jeffries v. Parker, 236 N.C. 756, 73 S.E.2d 783 (1953); Pilley v. Smith, 230 N.C. 62, 51 S.E.2d 923 (1949).
In Oxendine v. Lewis, supra, certain property was conveyed to Malinda Hunt. The deed of conveyance contained a granting clause which conveyed a fee, and the habendum and warranty portions of the deed were in harmony with the granting clause. At the beginning of the description of the deed, it appeared that Malinda was conveyed "[a] life estate in and to the following described tract of land. . . ." At the end of the description the following clause appeared:
"`It is distinctly understood between the parties of the first part and the party of the second part that the said Malinda Oxendine Hunt is to have a lifetime right and full control of the possession of the property herein conveyed, and the remainder, subject to said lifetime right, is retained by Roy Oxendine.'"
The Court held that under the decisions of Artis v. Artis, supra, Jeffries v. Parker, supra, and other cases, the words appearing in the description were not sufficient to limit the unqualified fee conveyed by the granting clause when the habendum contained no limitation on the fee therein conveyed and a fee simple title was warranted in the covenants of title. The Court then quoted from Jeffries v. Parker, supra, at 673, 114 S.E.2d at 709:
"`. . . This is now settled law in this jurisdiction. Krites v. Plott, 222 N.C. 679, 24 S.E.2d 531 [1943]. and Jefferson v. Jefferson, 219 N.C. 333, 13 S.E.2d 745 [1941], to the extent they conflict with this conclusion, have been overruled.'"
The defendants in the case at bar contend that although the rule in Artis v. Artis, supra, exists, this Court should not follow it. Rather, defendants argue that the principles stated in Triplett v. Williams, 149 N.C. 394, 63 S.E. 79 (1908), should control. In Triplett, the premises and the granting clause conveyed fee simple title. The habendum, however, limited the grantee to a life estate with the remainder going to the grantee's children. This Court held that a life estate was created.
In reaching its conclusion, the Court reasoned that the habendum clause in a deed may enlarge or restrict the estate conveyed by the granting clause and that the two clauses were not repugnant to each other. The Court then went on, in dictum, to state that the intention of the grantor should be ascertained from the entire instrument in those cases where the clauses in a deed are contradictory.
We do not feel, however, that Triplett is controlling in the case at bar. In Triplett, the limitation upon the estate granted was contained in the habendum. The reason for the habendum in a deed is to "define the extent of ownership in the thing granted to be held and enjoyed by the grantee . . . to lessen, enlarge, explain, or qualify the estate granted in the premises . . . but not to contradict or be repugnant to the estate granted therein. . . ." Bryant v. Shields, 220 N.C. 628, 632, 18 S.E.2d 157, 159 (1942).
Two cases cited by defendants, Mattox v. State, 280 N.C. 471, 186 S.E.2d 378 (1972), and Lackey v. Board of Education, 258 N.C. 460, 128 S.E.2d 806 (1963), are to the same effect. In Mattox, a lengthy condition subsequent was set out in the habendum. In Lackey, a reverter clause followed both the description and the habendum. Thus, these cases are distinguishable from the conveyance in the case at bar which had no qualifying clause in the habendum.
Were it not for the decisions in Artis v. Artis, supra, and Oxendine v. Lewis, supra, and cases cited therein, and had the General Assembly not addressed itself to this problem by passing G.S. 39-1.1, we would be inclined to agree with defendants that the deed in this case should be construed to effectuate the apparent intention of the grantors, and that title should revert to the heirs of the grantors. However, by the adoption of G.S. 39-1.1, the legislators, in their wisdom, provided that the existing law only be changed as to conveyances executed after 1 January 1968. G.S. 39-1.1 provides:
"(a) In construing a conveyance executed after January 1, 1968, in which there are inconsistent clauses, the courts shall determine the effect of the instrument on the basis of the intent of the parties as it appears from all of the provisions of the instrument.
"(b) The provisions of subsection (a) of this section shall not prevent the application of the rule in Shelley's case."
By the enactment of this statute, the General Assembly clearly indicated its intention to leave the law relating to conveyances executed prior to 1 January 1968 unchanged and that the rule as stated in Artis v. Artis, supra, and Oxendine v. Lewis, supra, should remain in effect for conveyances executed prior to that date. Granting that this rule may occasionally subvert the real intention of the grantor, these particular instances of hardship can better be endured than the uncertainty and confusion of titles resulting from sudden and radical changes in well settled rules of property.
As Chief Justice Shepherd said in Starnes v. Hill, 112 N.C. 1, 18, 16 S.E. 1011, 1016 (1893), quoting from Fearne, Contingent Remainders and Executory Devises 171 (Butler ed. 1862):
"`Certain established maxims as to the legal import and effect of technical expressions will render the decisions of title to property as little dependent as the nature of things will admit upon the occasional opinion, humor, ingenuity or caprice of the judge, and are therefore the most proper and sure grounds for titles to rest and depend upon. Titles so founded may be easily and clearly ascertained, and under them a permanent peaceful enjoyment may be expected.'"
By the passage of G.S. 39-1.1, it would appear that "[i]t is the legislative will that the intention of the grantor and not the technical words of the common law shall govern." Triplett v. Williams, supra, at 398, 63 S.E. at 80. See also Comment, 4 Wake Forest Intra. L. Rev. 132 (1968). Thus, we are of the opinion that so long as it does not prevent the application of the rule in Shelley's case, conveyances executed after 1 January 1968 in which there are inconsistent clauses shall be construed in accordance with G.S. 39-1.1 so as to effectuate the intent of the parties as it appears from all the provisions in the instrument. However, we hold that G.S. 39-1.1 does not apply to conveyances executed prior to 1 January 1968 and that such conveyances will be construed in accordance with the principles enunciated in Artis v. Artis, supra, and Oxendine v. Lewis, supra. Hence, in present case, the clause inserted after the description in the conveyance which tends to delimit the estate will be deemed mere surplusage without force or effect.
For the reasons stated, the decision of the Court of Appeals is affirmed.
Affirmed.