Carr v. Jimmerson, 210 N.C. 570 (1936)

Oct. 14, 1936 · Supreme Court of North Carolina

210 N.C. 570

B. G. CARR and Wife, BESSIE SNIPES CARR; C. A. CARR and Wife, IRENE GOODSON CARR; HESSIE CARR KEITH and Husband, RAY KEITH, v. ROY JIMMERSON (Single); HAZEL McATEE (Adult), and MILDRED GARDIN, A Minor, and ROY W. DAVIS, Guardian Ad Litem of MILDRED GARDIN.

(Filed 14 October, 1936.)

1. Actions B g—

An action to establish the rights oí the parties under an ambiguous deed is held, to come within provisions of the Declaratory Judgment Act. N. O. Code, 628 (b).

2. Deeds O a—

In construing a deed, the language and the entire setting must be considered to ascertain the intention of the grantors, and, if possible, effect must be given to every word, and all its provisions harmonized.

3. Deeds O c — Deed held not to exclude grantor from inheriting as one of the heirs of the grantee.

Grantee’s child by his first wife deeded to him lands inherited from her mother. The granting clause read to the grantee “and his heirs except as to” the grantor, and habendum, to the grantee “and his heirs except as to” the grantor. Held: The grantee took a fee simple, and the language is too vague and uncertain to exclude the grantor, or those representing her, from inheriting as one of the heirs of the grantor upon his death without disposing of the lands.

Appeal by plaintiffs, petitioners, from Sink, J., at July Term, 1936, of McDowell.

Affirmed.

This is an action instituted under the Uniform Declaratory Judgment Act of North Carolina, seeking proper interpretation, meaning, and effect of clause in the deed in question. This appeal involves the sole question of interpreting and construing the following portions of the deed:.

(1) In the granting clause: “To said Edward Carr, Sr., and his heirs except as to M. B. Jimmerson,” and

(2) In the habendum: “To the said Edward Carr, Sr., his heirs, except as to M. B. Jimmerson and assigns, to their only use and behoof forever.”

Edward Carr married twice and had two sets of children. His first wife died seized of the lands in question and left two children, M. B. Jimmerson and E. J. Carr. By his second wife he had four children, one of whom died without children. Edward Carr purchased the land of which his first wife died seized from their two children. In the deed from his daughter, M. B. Jimmerson, appears the provision involved in this appeal as above stated.

The declaratory judgment is as follows: “This cause coming on for hearing at the July Term, 1936, of the Superior Court of McDowell County, N. C., before his Honor, H. Hoyle Sink, Judge presiding, and being heard, and it appearing to the court that this is a petition for declaratory judgment under the Uniform Declaratory Judgment Act of North Carolina, for the construction of a deed from M. B. Jimmerson and husband, M. Austin Jimmerson, to Edward Carr, Sr., dated the 13th day of October, 1898, and recorded in Book 26, at page 583 of the deed records of McDowell County, N. 0., all as is set forth in the petition, and the court finding as facts from the record that all persons having or claiming to have any interest, which will be affected by the declaration, have been made parties to this proceeding; that the defendants Roy Jimmerson, Hazel McAtee, and Mildred Cardin, minor, have been served with summons by publication; that Roy W. Davis has been appointed guardian ad litem of Mildred G-ardin, minor defendant, and summons has been served upon him and he has answered and the said minor and codefendants are properly in court; that the facts are as stated in the petition and are admitted by the guardian ad litem and that the defendants Roy Jimmerson and Hazel McAtee have not answered and the time for answering has expired; that no issues of fact are raised. And after hearing argument of counsel, the court is of the opinion that this is a proper case for a declaratory judgment, and the court being of opinion that the language used in granting the habendum clause in the deed from M. B. Jimmerson and husband to Edward Carr, Sr., specifically described in paragraph 8 of the petition, does not manifest a clear meaning and intention to exclude the said M. B. Jimmerson and her heirs at law from the heirs of said Edward Carr, Sr., in so far as the land being conveyed was concerned, and that the title conveyed thereby to Edward Carr, Sr., was a fee simple title, and that upon his death the title acquired by him under said deed passed to and vested in his heirs at law without exception, and that the heirs at law of M. B. Jimmerson inherited the part which their ancestor, M. B. Jimmerson, would have inherited had she survived the said Edward Carr, Sr.: It is therefore considered, ordered, adjudged, and decreed that by proper construction of the language of the said deed from M. B. Jimmerson and husband to Edward Carr, Sr., hereinbefore described, the said Edward Carr, Sr., became vested in fee simple of the title conveyed thereby and that upon his death the title to such of the lands conveyed thereby, as had not been conveyed by him, descended to the heirs at law of Edward Carr under the rules of the statutes of descent without exception. It is further ordered that petitioners shall pay the cost of this action, including an allowance of $10.00 to Roy W. Davis, as guardian ad litem.

H. Hoyle SiNic, Judge presiding.”

The plaintiffs, petitioners, excepted to the judgment as signed, assigned error, and appealed to the Supreme Court.

Winborne & Proctor for plaintiffs, appellants.

No counsel for defendants.

Per Curiam.

The Uniform Declaratory Judgment Act (N. C. Code, 1935 [Michie], sec. 628[2]), is as follows: “Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations, whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree.”

Section 628 (b) is as follows: “Any person interested under a deed, will, written contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise, and obtain a declaration of rights, status, or other legal relations thereunder. A contract may be construed either before or after there has been a breach thereof.” Allison v. Sharp, 209 N. C., 477.

This action or proceeding is maintainable under the Uniform Declaratory Judgment Act, as above set forth.

It is well settled that the language used in the entire instrument and setting must be considered to ascertain the intention of the makers. If possible, some effect must be given to every word of a deed and all of its provisions harmonized.

The court below held that the language used: “Does not manifest a clear meaning and intention to exclude the said M. B. Jimmerson and her heirs at law from the heirs of said Edward Carr, Sr., in so far as the land being conveyed was concerned and that the title conveyed thereby to Edward Carr, Sr., was a fee simple title.” We think this construction of the deed correct. The meaning of the language in the deed in controversy, in the granting clause: “Except as to M. B. Jim-merson” and “except as to M. B. Jimmerson and assigns,” in the haben-dum clause, is vague, uncertain, and ambiguous, and we cannot give it the construction contended for by plaintiffs, petitioners.

The judgment of the court below is

Affirmed.