Elliott v. Cox
397 S.E.2d 319
N.C. Ct. App.
1990
Check Treatment
WELLS, Judge.

Plaintiffs contend that the court should construe the 1937 deed to pass title to them subject to a life estate interest in Edna if she survived Archie and to declare void the 1988 deed from Edna Buffkin to defendants. Defendants contend that the court should construe the 1937 deed to create a tenancy by the entirety in Archie and Edna Buffkin and give full force and effect to the 1988 deed to defendants.

The materials presented to the court show that the facts in this case are not in dispute, and that only the language in the deed is at issue. “A deed is to be construed by the court, and the meaning of its terms is a question of law, not of fact.” Mason v. Andersen, 33 N.C. App. 568, 235 S.E.2d 880 (1977). See also Anderson v. Jackson Co. Bd. of Education, 76 N.C. App. 440, 333 S.E.2d 533, cert. denied, 315 N.C. 586, 341 S.E.2d 22 (1985). A deed is to be construed to ascertain the intention of the grantor as expressed in the language used, construed from the four corners of the instrument. Reynolds v. Sand Co., 263 N.C. 609, 139 S.E.2d 888 (1965).

*539Defendants contend that the introductory recital creates a tenancy by the entirety fee simple and that the following clauses although inconsistent do not affect the tenancy by the entirety. Defendants cite Byrd v. Patterson, 229 N.C. 156, 48 S.E.2d 45 (1948), for the proposition that “. . . slight inconsistencies in the designation of the grantees in the several provisions of the deed do not affect the nature of the estate conveyed. . . .” Defendants rely on the mistaken premise that the introductory recital in this deed is the granting clause. From this premise, defendants contend that inconsistencies exist in the deed and repugnant clauses should be discarded. We disagree.

The granting, habendum and warranty clauses of the deed are all in accord and clearly express the grantors’ intent to limit Edna Buffkin to a life estate should she survive her husband. The estate created in the granting clause is not a tenancy by the entirety fee simple as defendants assert. As stated in Byrd “. . . in the event of any repugnancy between the granting clause and preceding or succeeding recitals, the granting clause will prevail.” Id. See also Johnson v. Burrow, 42 N.C. App. 273, 256 S.E.2d 811 (1979). The introductory recital that defendants claim creates a tenancy by the entirety is repugnant to the granting clause and must be disregarded.

Defendants also contend that because the introductory recital is first on the deed that it takes priority. Defendants cite Bowden v. Bowden, 264 N.C. 296, 141 S.E.2d 621 (1965), for the proposition that where two clauses in the deed are repugnant, the first in order will be given effect and the latter rejected. Bowden involved a granting clause followed by an inconsistent habendum and warranty clause. We do not agree that Bowden stands for the proposition that an introductory recital, by virtue of being first in the deed, will be given effect over the granting, habendum and warranty clauses all of which are in accord with each other but inconsistent with the introductory recital.

Having found the language in the deed to be clear and the clauses free from inconsistency, we hold that the deed did not convey an estate in fee simple to Edna Buffkin.

Finally, defendants contend in the alternative, that if the deed did not create a tenancy by the entirety then the limitation over still should not be given effect because Edna Buffkin was Archie *540Buffkin’s heir at law in 1968 pursuant to N.C. Gen. Stat. § 29-2(3), the Intestate Succession Act.

Assuming arguendo that Edna Buffkin was Archie Buffkin’s sole heir when he died, this circumstance is of no avail to defendants. Our Supreme Court has stated and applied the following rule, which is applicable to the facts now before us:

Applying the principle, it has been held in several of our decisions construing deeds of similar import that, in case of a limitation over on the death of a grantee or first taker without heir or heirs, and the second or ultimate taker is presumptively of potentially one of the heirs general of the first, the term ‘dying without heir or heirs’ on the part of the grantee will be construed to mean, not his heirs general, but his issue in the sense of children and grandchildren, etc., living at his. death.

Hampton v. Griggs, 184 N.C. 13, 18-19, 113 S.E. 501, 503 (1922), citing Pugh v. Allen, 179 N.C. 309, 102 S.E. 394 (1920). Under the deed from P. V. and Lucy Buffkin, Archie Buffkin took a fee simple defeasible upon his death without surviving issue. Jernigan v. Lee, 279 N.C. 341, 182 S.E.2d 351 (1971). Archie’s estate ended when he died without surviving issue, and the limitation over in his deed operated at his death to convey fee simple title to Forest B. Culbreth and Louise White or their heirs. See also Webster, Real Estate Law in North Carolina, § 39 (1988 Ed.).

For the reasons stated, the judgment of the trial court is

Affirmed.

Judges EAGLES and LEWIS concur.