Waters v. North Carolina Phosphate Corp., 32 N.C. App. 305 (1977)

Feb. 2, 1977 · North Carolina Court of Appeals · No. 763SC647

32 N.C. App. 305

PAUL R. WATERS and Wife, ALMA M. WATERS, and WACHOVIA BANK AND TRUST COMPANY, N.A., Trustee under the Will of JAMES A. TINGLE, Deceased v. NORTH CAROLINA PHOSPHATE CORPORATION, DAVID B. ALLEMAN and Wife, RUTH G. ALLEMAN, and ELIZABETH KEYS ALLEMAN WHEELER (Divorced)

No. 763SC647

(Filed 2 February 1977)

Deeds § 12— inconsistent clauses in deed — conveyance in granting clause governs

Language in a deed which was found only in the same paragraph as the description was ineffectual and did not create a valid right of reentry on breach of the stated conditions, sinee the conditions and right of reentry were not referred to anywhere else in the deed; an unqualified fee was conveyed by the granting clause; and the haben-dum clause contained no limitation on the fee conveyed by the granting clause.

Appeal by defendants David B. Alleman, Ruth G. Alleman and Elizabeth Keys Alleman Wheeler from Rouse, Judge. Judgment entered 9 April 1976 in Superior Court, Pamlico County. Heard in the Court of Appeals 13 January 1977.

A recital of the factual and procedural background of the case is unnecessary to an understanding of the question presented on appeal, which involves the construction of a deed.

The deed in question was prepared on a commercially printed form. The granting clause is as follows: “ . . . [Grantors] do hereby grant and release unto the parties of the second part, their heirs and assigns forever . . . . ” Following the printed granting clause the lands being conveyed are described. Following the description, in the same paragraph with the description, the following language appears:

“Subject to the following covenants and restrictions which will run with and bind the land and will be considered as conditions subsequent with right of reentry on breach; that no timber shall be cut from any of these premises; that no irrigation indebtedness, shall be imposed upon this land; that no building shall be removed from the premises without written permission of the parties of the first part hereto.”

Following the description and in a separate paragraph the habendum clause is printed on the form and is as follows: “To Have And To Hold the premises herein granted unto the parties of the second part, their heirs and assigns forever.”

The judge concluded that the language we have quoted from the paragraph containing the description was ineffectual. Summary judgment was granted in favor of plaintiffs against the appealing defendants.

Gaylord, Singleton & McNally, by Phillip R. Dixon and Louis W. Gaylord, Jr., for plaintiff appellees.

Morris, Golding, Blue and Phillips, by William C. Morris, Jr., for defendant appellants.

VAUGHN, Judge.

The sole question is whether the language in the deed that we have heretofore quoted, and which is found only in the same paragraph with the description, creates a valid right of reentry on breach of the stated conditions. The conditions and the right of reentry are not referred to anywhere else in the deed. The trial judge concluded that the language was ineffectual . and we must agree.

We have duly considered the strong arguments in defendants’ brief and the astute analysis of the cases discussed therein. We conclude, nevertheless, that our decision must be guided by that of the Supreme Court in Whetsell v. Jernigan, 291 N.C. 128, 229 S.E. 2d 183, which affirmed the decision of this Court in Whetsell v. Jernigan, 29 N.C. App. 136, 223 S.E. 2d 397. Whetsell involved a reverter clause that appeared only at the end of the description and was not referred to elsewhere in the deed. The Court held that the clause was ineffective. We see no significance in any differences between the deed in Whetsell and the one in the case at bar insofar as the relevant propositions of law are concerned. There, as here, the conveyance was executed prior to the effective date of G.S. 39-1.1. That statute, in effect, requires the Court to determine the effect of instruments of conveyance containing inconsistent clauses (executed after 1 January 1968) on the basis of the intent of the parties as it appears from all of the provisions of the instrument. In Whetsell, the Court considered its decisions in Artis v. Artis, 228 N.C. 754, 47 S.E. 2d 228; Oxendine v. Lewis, 252 N.C. 669, 114 S.E. 2d 706, and similar cases as having established the proposition that words appearing only in the description of a deed are not sufficient to limit the unqualified fee conveyed by the granting clause when the habendum clause contains no limitations on the fee therein conveyed and a fee simple title was warranted in the covenants of title. The Court then reasoned that, since the General Assembly provided that its provision should apply to all conveyances executed after 1 January 1968, the Court should not change the proposition voiced in Artis, Oxendine and other earlier cases in interpreting conveyances executed prior to that date.

For the reasons stated, the judgment is affirmed.

Affirmed.

Judges Hedrick and Clark concur.