Allen v. . Bowen

74 N.C. 155

• Court: Supreme Court of North Carolina
• Decided: January 5, 1876
• Status: Published

Opinion

Bymtom, J.

Thé intent to convey the fee simple is clearly 'Expressed and is not denied, and the only question submitted for our decision is, whether the deed conveys a fee simple, as •was intended, or only a life estate. It is the duty of the -court to give the deed such a construction as will carry out the intent of the parties to it, if it can be done according to •the rules of construction which have been adopted by the •court. The facts of the case are so like Phillips and wife v. Thompson and wife, 73 N. C. Rep., 543, that it is only necessary to refer to that cáse as governing our decision in this. The confusion here, as in that case, is produced by the attempt to incorporate a clause of warranty with the ha bend vm. By -'•excluding from the deed, or putting in a parenthesis, tliakpor-vtion of the instrument purportiong to make a warranty, the deed becomes intelligible, and tliougli very inartificially drawn, it conveys a fee simple estate to tbe bargainee. See also Armfield v. Walker, 5 Ired., 580, and Phillips v. Davis, 69 N. C. Rep., 117.

There is error. Judgment reversed and judgment for the-defendant according to the case agreed.

Per Curiam. Judgment accordingly.