Whetsell v. Jernigan

29 N.C. App. 136 | N.C. Ct. App. | 1976

CLARK, Judge.

The fundamental question presented on appeal is whether provisions in a deed for the reverter of title to the grantor are valid and effective where they appear only at the end of the description and are not referred to elsewhere in the deed. One line of cases holds that when the granting clause in a deed to real property conveys an unqualified fee and the habendum contains no limitation on the fee thus conveyed and a fee simple title is warranted in the covenants of title, any additional clause or provision repugnant thereto and not by reference made a part thereof inserted in the instrument as a part of, or following the description of the property conveyed, or elsewhere other than in the granting or habendum clause, which tends to delimit the estate thus conveyed, will be deemed mere surplusage without force or effect. Oxendine v. Lewis, 252 N.C. 669, 114 S.E. 2d 706 (1960) ; Jeffries v. Parker, 236 N.C. 756, 73 S.E. 2d 783 (1953).

The defendants rely on cases which hold in effect that the grantor's intent as gathered from the instrument itself controls disposition of the case; that discovery of this intention is the chief essential in the construction of conveyances; and that artificial importance should not be given to the formal parts of a deed. Mattox v. State, 280 N.C. 471, 186 S.E. 2d 378 (1972) ; Lackey v. Board of Education, 258 N.C. 460, 128 S.E. 2d 806 (1963) ; Board of Education v. Carr, 15 N.C. App. 690, 190 S.E. 2d 653 (1972).

In Lackey there was a reverter clause following both the description and the habendum clause. In Mattox a lengthy condition subsequent was set out in the habendum clause. In Board of Education there appeared after the habendum clause a condition that title should revert to the grantor if the properties should cease to be used for a nondenominational school.

But we find that in those cases where the granting, haben-dum and warranty clauses are regular in form and the language delimiting the fee appeared only in the body of the deed following the description, the North Carolina Supreme Court has consistently followed the rule in Oxendine v. Lewis, supra.

In the case before us we find that the language following is without force and effect. The judgment of the trial court is the description which tends to delimit the estate thus conveyed

Reversed.

Judges Moréis and Vaughn concur.