Johnson v. Barham, 232 N.C. 508

Johnson v. Barham

232 N.C. 508 | N.C. | 1950

'WiNBORNE, J.

The sole assignment of error on this appeal is based upon exception to the signing of the judgment. Such exception challenges only the conclusions of law upon facts found by the court. Smith v. Davis, 228 N.C. 172, 45 S.E. 2d 51, and cases there cited directly and by reference. See also Burnsville v. Boone, 231 N.C. 577, 58 S.E. 2d 351.

Accordingly two questions of law, on which the correctness of the judgment depends, are presented by appellant for decision.

First: Did the court err in holding that, by the terms of the deed in question, H. M. Richardson conveyed his curtesy interest in the whole tract of land therein described ?

A reading of the deed, in the light of applicable principles of law, lead to a negative answer to this question. Artis v. Artis, 228 N.C. 754, 47 S.E. 2d 21, and cases cited.

*511The words used in the granting clause (1) “to said R. E. Barham, Lis heirs and assigns,” (2) in the habendum “to the said R. E. Barham, his heirs and assigns, to their only use and behoof forever,” and (3) in the warranty “said R. E. Barham, his heirs and assigns” clearly and unqualifiedly convey, and relate to a conveyance of a fee simple estate. Standing alone, the operative clauses of the deed constitute an unrestricted conveyance of the land described, that of a conveyance in fee simple. Whitley v. Arenson, 219 N.C. 121, 12 S.E. 2d 906. Ordinarily the premises and granting clauses designate the grantee and the thing granted — while the habendum clause relates to the quantum of the estate. “The granting clause is the very essence of the contract,” 16 Am. Jur. 567, Bryant v. Shields, 220 N.C. 628, 18 S.E. 2d 157. And the habendum, in the present case, is in harmony with the granting clause.

Thus the granting clause and the habendum are sufficient in wording do convey whatever interest the grantors had in the land conveyed. Moreover, the paragraph reading, “The grantor,' H. M. Richardson, does by this instrument convey to the grantee, R. E. Barham, his curtesy .and lifetime right in and to the above described tract of land,” if given effect, clearly covers the estate by curtesy in the “whole tract of land.” The only tract of land “above described” in the deed is the whole tract. But if the paragraph were sufficient in wording to limit the quantity of the curtesy which had been included, as a matter of law, in the estate conveyed in the granting clause, it would be repugnant to both the granting clause and the habendum. Hence the granting clause prevails, and the repugnant clause is rejected. Artis v. Artis, supra, and cases cited.

Appellants state this as the second question: “If so, is there a latent ambiguity arising from the two paragraphs immediately following the description so as to make vague, uncertain or indefinite the interest of the grantor, H. M. Richardson, conveyed by the deed?”

Apparently this question is predicated upon the assumption that the first question would be answered in the affirmative. Since that is not the case, it would seem that discussion of this question is beside the point. But in any event, a reading-of the two paragraphs fails to show any interdependent relationship. In the first place' the grantors undertake to describe and limit the interest they are conveying “in and to the above described tract of land,” and in the. second paragraph the grantor also undertakes to describe and limit the interest he is conveying “in and to the above described tract of land.” So, after all, the only interlocking relationship is the description of the land.

Therefore, the judgment below is

Affirmed.