Mayberry v. Grimsley, 208 N.C. 64 (1935)

March 20, 1935 · Supreme Court of North Carolina
208 N.C. 64


(Filed 20 March, 1935.)

Deeds and Conveyances C c — Rule in Shelley’s case held applicable to deed in this case.

A deed “to M. and her children,” with granting clause “to M., her heirs and assigns,” and habendum “to have and to hold ... tó M., her heirs, and assigns,” is held to convey no estate to the children of M. m esse at the time of the execution of the deed, the word “children” appearing only in the premises, and the intent of the grantor as gathered from the whole instrument being to convey the estate to M. in fee.

Appeal by plaintiff from Oglesby, J., at August Term, 1934, of Yadkin.

Civil action to restrain foreclosure under deed of trust on ground that plaintiff’s wards bave an interest in tbe lands sought to be sold.

Tbe facts are these:

1. On 9 September, 1925, a deed for tbe land in question was made, according to tbe premises, “to Nonnie A. Mayberry and her children,” while in tbe granting clause tbe property is conveyed “to said Nonnie A. Mayberry, her heirs and assigns,” and tbe habendum is “To bave and to bold ... to tbe said Nonnie A. Mayberry, her heirs and assigns,” etc.

2. Plaintiff’s wards are children of Nonnie A. Mayberry and were in esse at tbe time .of tbe execution and delivery of said deed.

3. On 20 April, 1929, Nonnie A. Mayberry and her husband executed deed of trust on said land, with full covenants of warranty, to George *65A. Grimsley, trustee, to secure a loan of $1,000 from tbe Security Life and Trust Company.

4. Plaintiff seeks to restrain sale or foreclosure under said deed of trust on tbe ground that bis wards are owners, as tenants in common witb tbeir mother, of said land.

Prom judgment dissolving tbe temporary restraining order and bold-ing tbe deed of 9 September, 1925, to convey no interest in said land to plaintiff’s wards, plaintiff appeals, assigning errors.

W. M. Allan for plaintiff.

Avalon E. Eall and Earl 0. James for defendants.

Stacy, C. J.

Plaintiff’s action is grounded on tbe principle, settled by numerous decisions, that a conveyance or devise to “Nonnie and ber children” vests in Nonnie and ber children then living, including any in ventre sa mere, as tenants in common, tbe present estate conveyed or devised. Tate v. Amos, 197 N. C., 159, 147 S. E., 809; Cunningham v. Worthington, 196 N. C., 778, 147 S. E., 294; Snowden v. Snowden, 187 N. C., 539, 122 S. E., 300; Benbury v. Butts, 184 N. C., 23, 113 S. E., 499; Cullens v. Cullens, 161 N. C., 344, 77 S. E., 228.

Tbe defendants, on tbe other band, say tbe doctrine announced in Boyd v. Campbell, 192 N. C., 398, 135 S. E., 121, Triplett v. Williams, 149 N. C., 394, 63 S. E., 79, and others to tbe effect that tbe “intent as gathered from tbe four corners of tbe instrument” is to govern, precludes tbe application of tbe principle invoked by plaintiff, because tbe deed in question, taken in its entirety, clearly excludes tbe children of tbe grantee as partakers witb tbeir mother in tbe estate conveyed. Tbe “children” appear only in tbe premises, while tbe operative words of conveyance, as contained in tbe granting clause, are “to said Nonnie A. Mayberry, ber heirs and assigns.” 8 R. C. L., 936 and 1046. This was tbe view of tbe trial court, and we agree witb bis decision.