Davis v. Brown

Supreme Court of North Carolina

Davis v. Brown

84 S.E.2d 334, 241 N.C. 116, 1954 N.C. LEXIS 556

CourtSupreme Court of North Carolina

DecidedNovember 10, 1954

Docket316

StatusPublished

Cited by5 cases

This text of 84 S.E.2d 334 (Davis v. Brown) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Davis v. Brown, 84 S.E.2d 334, 241 N.C. 116, 1954 N.C. LEXIS 556 (N.C. 1954).

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Opinion

Denny, J.

Ordinarily, in construing a deed it is the duty of the court to ascertain the intent of the grantor or grantors as embodied in the entire instrument, and each and every part thereof must be given effect if this can be done by any fair or reasonable interpretation. Featherston v. Merrimon, 148 N.C. 199, 61 S.E. 675 ; Triplett v. Williams, 149 N.C. 394, 63 S.E. 79, 24 L.R.A. (N.S.) 514; In re Dixon, 156 N.C. 26, 72 S.E. 71; Acker v. Pridgen, 158 N.C. 337, 74 S.E. 335; Midgett v. Meekins, 160 N.C. 42, 75 S.E. 728; Seawell v. Hall, 185 N.C. 80, 116 S.E. 189; Boyd v. Campbell, 192 N.C. 398, 135 S.E. 121; Jefferson v. Jefferson, 219 N.C. 333, 13 S.E. 2d 745; Bryant v. Shields, 220 N.C. 628, 18 S.E. 2d 157. However, in arriving at the intent of the grantor in a deed, we must not lose sight of the principle that when rules of construction have been settled they should be observed and enforced. Boyd v. Campbell, supra; Bagwell v. Hines, 187 N.C. 690, 122 S.E. 659.

It is settled law with us that when a conveyance is made to A and his children, if A has children when the deed is executed, he and they take as tenants in common. Cullens v. Cullens, 161 N.C. 344, 77 S.E. 228, L.R.A. 1917B, 74. But if A has no children when the deed is executed, he takes an estate tail which, under our statute, is converted into a fee. G.S. 41-1; Cole v. Thornton, 180 N.C. 90, 104 S.E. 74; Boyd v. Campbell, supra. Cf. Martin v. Knowles, 195 N.C. 427, 142 S.E. 313.

*119 In Boyd v. Campbell, supra, the granting clause was, “To the said Pleas Clodfellow, his children and then to his grandchildren forever and heirs and assigns.” The habendum was, “To the said Pleas Clodfellow, to him and his children, their lives, heirs and assigns, and then to his grandchildren forever, only use and behoof forever.” Clodfellow had no children when the deed was executed and this Court held that he took a fee tail which, under C.S. 1734 (now G.S. 41-1), was converted into a fee.

Likewise, Myrtle LaMott Davis had no children when the deed was executed to her; therefore, she obtained an estate tail which the statute converted into a fee simple title, subject to the life estate of her parents, the grantors. Hence, the judgment of the court below is

Affirmed.

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Denny, J.

Ordinarily, in construing a deed it is the duty of the court to ascertain the intent of the grantor or grantors as embodied in the entire instrument, and each and every part thereof must be given effect if this can be done by any fair or reasonable interpretation. Featherston v. Merrimon, 148 N.C. 199, 61 S.E. 675 ; Triplett v. Williams, 149 N.C. 394, 63 S.E. 79, 24 L.R.A. (N.S.) 514; In re Dixon, 156 N.C. 26, 72 S.E. 71; Acker v. Pridgen, 158 N.C. 337, 74 S.E. 335; Midgett v. Meekins, 160 N.C. 42, 75 S.E. 728; Seawell v. Hall, 185 N.C. 80, 116 S.E. 189; Boyd v. Campbell, 192 N.C. 398, 135 S.E. 121; Jefferson v. Jefferson, 219 N.C. 333, 13 S.E. 2d 745; Bryant v. Shields, 220 N.C. 628, 18 S.E. 2d 157. However, in arriving at the intent of the grantor in a deed, we must not lose sight of the principle that when rules of construction have been settled they should be observed and enforced. Boyd v. Campbell, supra; Bagwell v. Hines, 187 N.C. 690, 122 S.E. 659.

It is settled law with us that when a conveyance is made to A and his children, if A has children when the deed is executed, he and they take as tenants in common. Cullens v. Cullens, 161 N.C. 344, 77 S.E. 228, L.R.A. 1917B, 74. But if A has no children when the deed is executed, he takes an estate tail which, under our statute, is converted into a fee. G.S. 41-1; Cole v. Thornton, 180 N.C. 90, 104 S.E. 74; Boyd v. Campbell, supra. Cf. Martin v. Knowles, 195 N.C. 427, 142 S.E. 313.

*119 In Boyd v. Campbell, supra, the granting clause was, “To the said Pleas Clodfellow, his children and then to his grandchildren forever and heirs and assigns.” The habendum was, “To the said Pleas Clodfellow, to him and his children, their lives, heirs and assigns, and then to his grandchildren forever, only use and behoof forever.” Clodfellow had no children when the deed was executed and this Court held that he took a fee tail which, under C.S. 1734 (now G.S. 41-1), was converted into a fee.

Likewise, Myrtle LaMott Davis had no children when the deed was executed to her; therefore, she obtained an estate tail which the statute converted into a fee simple title, subject to the life estate of her parents, the grantors. Hence, the judgment of the court below is

Affirmed.

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84 S.E.2d 334, 241 N.C. 116, 1954 N.C. LEXIS 556, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-brown-nc-1954.

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