Hines v. Hines, 217 N.C. 325 (1940)

March 27, 1940 · Supreme Court of North Carolina

217 N.C. 325

LENA HINES, EMMA ALLIGOOD, W. M. CARTER and Wife, ADDIE CARTER, HATTON HINES, HORACE HINES, ELSIE SEIWELL and Husband, PETER SEIWELL, MILDRED HENDERSON and Husband, MACK HENDERSON, MATTHEW HINES, LEONARD HINES, WILMER HINES, ROBERT HINES, MITCHELL T. HINES, JAMES McDONALD HINES, the Last Three Being Minors by Their Next Friend, LENA HINES, v. FANNIE MAE HINES, Widow of P. R. HINES, and GEORGE STANCILL HINES, a Minor, Heir at Law of P. R. HINES, by His Guardian Ad Litem, FANNIE MAE HINES.

(Filed 27 March, 1940.)

1. Deeds § 13a—

The provision of C. S., 991, that a conveyance will be construed to be in fee whether the word “heir” is used or not, applies by the express language of the statute only when the deed fails to disclose a clear intention to convey an estate of less dignity.

2. Same — Instrument held to disclose plain intention not to convey fee.

The instrument in question stipulated that the grantor did “give, grant, bargain, sell and convey, lease and let” to the grantee the described premises for the purpose of using same as a home until the grantor should see fit to sell or repossess the land, and that as rents the grantee should pay one-half the taxes and insurance on the property, that the grantee should be a tenant at will, and twice provided that the grantee should give up and deliver possession upon 30 days notice. Helé: The instrument clearly indicates an intention to convey an estate of less dignity than a fee and O. S., 991, is not applicable, and the instrument' is a lease, and upon the death of the grantee, lessee, his heirs take no interest in the land thereunder.

Appeal by defendants from Frizzells, J., at October Term, 1939, of Pitt.

Affirmed.

Tbe plaintiffs’ complaint alleged, in part: “That at tbe time of tbe dea,th of Mrs. Lizzie Tunstall, in tbe town of Murry, Greene County, North Carolina, on or about tbe . day of August, 1937, tbe said Lizzie Tunstall was seized and possessed of a one-balf undivided interest in that certain real property lying and being situated in or near tbe town of Ayden, Pitt County, North Carolina, and being tbe bouse and lot and about three acres of vacant lands adjacent thereto, being tbe same bouse and lot and vacant lands now occupied by one of tbe petitioners, Lena Hines, and that upon tbe death of tbe said Mrs. Lizzie Tunstall, tbe plaintiff petitioners and tbe defendants became tbe owners in fee simple and tenants in common of said one-balf undivided interest in said real property, and tbe plaintiffs and tbe defendants are tbe only persons or parties interested in tbe said one-balf undivided interest in said property as heirs at law of tbe late Mrs. Lizzie Tunstall. That tbe interest of tbe plaintiffs and tbe defendants in tbe said one-balf undivided interest in said real property is as follows: . . . (setting same forth) . . . George Stancill, tbe infant defendant, as heir at law of tbe late P. R. Hines, owns 15/90 of said undivided interest, subject to tbe dower interest of bis mother, tbe defendant, Fannie Mae Hines, widow of P. R. Hines. íhe real property hereinbefore described is too small to be susceptible of actual division, and tbe petitioners desire to bold their interest therein in severalty in tbe proceeds of tbe sale of said property, due to tbe fact that tbe interests of tbe tenants in common are too small to be allotted to them in land. . . . Wherefore, your petitioners pray that an order be made by tbe court that tbe said one-balf undivided interest of tbe real property hereinbefore described be sold at public sale before tbe courthouse door in Greenville, to tbe highest bidder for cash, to tbe end that tbe tenants in common may bold their interests in tbe proceeds thereof in severalty.”

Tbe defendants denied tbe material allegations of tbe complaint and, answering further tbe complaint, say: “That P. R. Hines was tbe owner in fee simple of a one-half undivided interest in tbe tract of land described in tbe petition, by reason of a deed executed by Lizzie Hines to P. R. Hines and recorded in Book Y-14, page 203, of tbe Pitt County Registry, and, therefore, tbe defendant George Stancill Hines, as heir at law of P. R. Hines, is now tbe owner of said one-balf undivided interest in said tract of land, subject to tbe dower right of tbe defendant Fannie Mae Hines, widow of P. E. Hines. That tbe defendants do not want a division nor a sale of tbe said tract of land or tbeir interest in tbe same, but if a sale is to be bad, tben tbe whole tract of land should be sold and tbe proceeds of tbe sale divided between tbe plaintiff Lena Hines and tbe defendants. . . . Wherefore, tbe defendants pray: First: That they be adjudged tbe owners of a one-balf interest in tbe tract of land described in tbe petition, and that tbe petition be denied. Second: That if a sale be ordered, that it be for tbe entire or whole tract of land for division.”

Tbe court below found certain facts and rendered judgment, in part, as follows: “Upon tbe pleadings filed, the deed in question, and tbe facts above found, tbe court is of tbe opinion, and bolds, adjudges and decrees that tbe defendants take no interest whatever or no estate whatever in tbe land set out and described in tbe petition filed in this cause under or by reason of tbe paper writing, deed, executed by Lizzie Hines to P. E. Hines and recorded in Book V-14, page 202, of tbe Pitt County registry, and set up and referred to in tbe answer of tbe defendants; but that tbe defendant George Stancill Hines, sole heir at law of tbe late P. E. Hines, owns fifteen-ninetieths of one-balf undivided interest in tbe lands described in tbe petition, subject to tbe dower interest of bis mother, Fannie Mae Bowen, widow of P. E. Hines, and that other parties own interests as set out in tbe petition. It is further ordered, adjudged and decreed that tbe lands set out and described in tbe petition filed in this cause be sold for tbe purpose of making division among tbe parties in interest therein in the proceeds thereof,” and that certain commissioners be appointed to make sale, etc.

Tbe defendants Fannie Mae Hines and George Stancill Hines, through bis guardian ad litem, Fannie Mae Hines, excepted to tbe foregoing judgment, assigned error and appealed to tbe Supreme Court.

Harding & Lee for plaintiffs.

Julius Brown for defendants.

Clarkson, J.

Tbe only question for our determination is: What interest or estate P. E. Hines took under tbe paper writing (termed deed) from Lizzie Hines to P. E. Hines, dated 19 March, 1924, and duly recorded in Pitt County, N. C. We think that tbe judgment of tbe court below is correct and that P. E. Hines took no interest or estate in tbe land in controversy, under tbe said paper writing.

To sustain tbe position that P. E. Hines bad a one-balf interest in tbe land, defendants cite C. S., 991, which is as follows: “When real estate is conveyed to any person, tbe same shall be held and construed to be a conveyance in fee, whether tbe word 'heir’ is used or not, unless such conveyance in plain and express words shows, or it is plainly intended by the conveyance or some part thereof, that the grantor meant to convey an estate of less dignity.” N. C. Code, 1935 (Michie), sec. 991.

We extract from the paper writing: (1) “Witnesseth: That for and in consideration of natural (love) and affection, and other good and valuable considerations and for the sum of one dollar in hand paid me by P. R. nines, I do hereby give, grant, bargain, sell and convey, lease and let to P. R. Hines, the following described property to P. R. Hines, for Ihe purpose of using the same as a home or unlil I shall see fit to sell ihe same or shall want the possession of said property at any time— (describing land in controversy). (2) To have and to hold the said one-half of said real estate, including one-half of the house room on said place in the dwelling and out houses and especially my rooms in said dwelling to him the said P. R. Hines’ only use and behoof, as a home in said land unlil 1 see fit to sell my said interest in the said property or unlil I shall see fit to repossess said land, and as rents for said property until I shall see fit to sell or repossess the same, P. B. Iiines agrees to pay one-half of the taxes and insurance on said property, and in case I shall see fit to sell the said property or to repossess the same, P. R. Hines agrees to give up and deliver the possession of the same to the said Lizzie Hines upon thirty days’ notice and agrees to keep the same in good repair and return the same in as good condition as of the date of this agreement, wear and tear and accident to the same excepted; and it is further agreed that P. R. Hines shall take possession of my said interest in said property after the 20th day of March, 1924, and from then until I shall wish to repossess or sell ihe same; and it is further agreed that the said P. R. Hines shall be a tenant of said land at my will and that I shall retain full right to dispossess and take said property at any time I shall desire to take possession of the same, and P. R. Hines agrees to give up and deliver possession of the same upon thirty days’ notice as above stated without let or hindrance of any kind whatsoever and he is hereby put into possession of the same to enjoy the quiet possession of same on and after the day above specified. Witness my hand and seal, this 19th day of March, 1924. (Miss) Lizzie Hines (Seal).” (Italics ours.)

It will be noted that the first part of section 991, supra, is qualified by the following: “Unless such conveyance in plain and express words show or it is plainly intended by the conveyance or some part thereof that the grantor meant to convey an estate of less dignity.” The paper writing clearly indicates that it was a lease. “P. R. Hines shall be a tenant of said land at my will,” etc. Twice in the paper writing it is set forth that P. R. Hines “agrees to give up and deliver possession of the same . . . upon thirty days’ notice.” We think the construction put on the paper writing by the court below correct, and the judgment is

Affirmed.