Blackwell v. . Blackwell

32 S.E. 676, 124 N.C. 269, 1899 N.C. LEXIS 51

• Court: Supreme Court of North Carolina
• Decided: March 28, 1899
• Status: Published

Opinion

FaiRcloth, C. J.

Tbe plaintiff instituted tbis action against tbe defendant, her husband, for possession of certain tracts of land, subject to bis marital right of ingress and egress, and for tbe exclusive control of tbe rents and profits of these lands. She claims to be tbe owner in fee, and be claims to have a life estate in them. Tbe whole matter turns upon tbe construction of a deed from plaintiff’s father and wife to her, dated December 22, 1887.

Tbe deed, in tbe premises, says, we “give, grant, convey and confirm unto tbe said Telia E. Blackwell (plaintiff), her heirs and assigns, two tracts of land. . . :to have and to bold tbe said lands and premises together with all tbe appurtenances thereto belonging, and we, . . . ., do warrant, and will forever defend tbe said title to tbe above-described land and premises to tbe said Telia E. Blackwell, her heirs and assigns, against tbe claim or claims of all persons whatsoever.” Tbe deed then concludes, “I give, grant and convey unto tbe said John B. Blackwell (defendant), under any and all circumstances, tbe above-described land and premises during tbe term of bis natural life, together with all tbe rents and profits arising therefrom.”

After tbe deed was put in evidence, bis Honor expressed tbe opinion that the defendant was entitled to a life estate and that tbe plaintiff could not recover. Nonsuit and appeal by plaintiff.

In earlier times tbe rule of construction was that tbe first conveying clause in a deed and tbe last clause in a will would control tbe estate. In modern times, tbe Courts, looking through a deed, will transpose words or sentences, if thereby they can effectuate tbe intention of tbe grantor, if it can be done without defeating tbe intent in any other part. But if in a deed there be two clauses so repugnant to each other that they can not stand together, the first shall be received and the latter rejected, differing in this respect from a will. 2 Bl. Com., 381.

Where exceptions or reservations appear in a deed, they retain in the grantor certain interests which do not pass. When, however, the fee is conveyed to A. in one part, and the fee or a part thereof is conveyed to B. in another part, these provisions are irreconcilable and repugnant, and one must yield to the other. In Hoffner v. Irwin, 20 N. C., 433, the whole interest was conveyed in the premises to one person, but in the habendum it was limited to another. Held, that the latter was repugnant to the former, and void. The same conclusion is arrived at in 2 Bl. Com., 381; 4 Kent Com., 468 (5), and in 9 Am. & Eng. Enc. (2nd. Ed.), 139. Applying these principles to the deed before us, the concluding clause is in conflict with the first part. The intention is clear in each case. 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 in the premises, expressed in apt language and repeated in the warranty clause, is to be observed, then there is nothing left to satisfy the intent in the last clause. Putting either in force, that necessarily defeats the intent in the other; and, as above shown, the first expression is the controlling part of the deed.

We hold, therefore, that the last clause of the deed is void, and that the plaintiff is entitled to judgment in her favor.

Reversed.