Allen v. Bowen, 74 N.C. 155 (1876)

Jan. 1876 · Supreme Court of North Carolina

74 N.C. 155

OWEN M. ALLEN and wife v. WILLIAM J. BOWEN and others.

A limitation by deed of “a tract or parcel of land lying and being ia the upper part of the C. L. tract, which we have drawn agreeble to the division that has-been made, and if said division shall not stand, the understanding is that we sell all the right, title and claim that we have in the lands of L. R., deceased, unto the said W. B. of the second part, and by these presents hath bargained and sold and conveyed our land or right aforesaid, which we. do warrant and forever-defend. And we, T. P. and E. P. his wife, doth for themselves, their, heirs and assigns forever, clear of all encumbrances whatsoever.” is clearly intended to convey, and does convey an estate in fee simple to the bargainee.

Armfkldv. Walker, 5- Ired. 580; Phillips v. Davis, 69 N; 0. Rep. 117; Phillips and wife v. Thompson and wife, 73 N, 0. Rep. 543, cited and approved.

Civil actioN in the nature of Itjeotment, tried before his. Honor Judge Moore, at Fall Term, 1875, of the Superior Court of "Washingtok county.

The following are the facts, as agreed- upon and sent up , aa a part of the record, upon appeal to this court:

The only question involved arose upon the construction of a deed dated the 16th day of October, 1846, between Thomas A. Pritchett and Elizabeth Pritchett, his wife, of the first part, and William Bowens, Sen., of the second part.

By said deed Pritchett and his wife, in consideration of the sum of one hundred and twenty .five dollars paid by Bowen, sold and conveyed “ a tract or parcel of land lying and being in the upper end of the Charles Latham tract which we have drawm, agreeable to the division that has been made, and if said division shall not stand, the understanding is that we sell all the right, title and claim that we have in the lands of Langley Respass, Sr., deceased, unto the said William Bowen, Sr., of the second part, and by these presents hath bargained and sold and conveyed our land or right aforesaid, which we do warranq. and forever defend. And we, Thomas A. Pritch-■«ett and Elizabeth, his wife, doth for themselves, their heirs, executors, administrators and assigns, forever the land to ;4he said William Bowen, his heirs, executors, administrators and assigns, forevei clear of all incumbrances whatever.”

William Bowen, Sr., is dead.

It is agreed by counsel, that if the court should be of the -opinion that the said deed does not convey the land in fee •simple to William Bowen, Sr., then the plaintiffs are entitled '-to a verdict and judgment for possession,' sixpence damages -and costs. If the court should be of opinion that the said ■■deed passes an estate in fee simple to the said William Bowen, »Sr., then a verdict and judgment is to be entered for the defendants.

The court being of opinion that the deed did not pass a fee ■simple to Bowen, rendered judgment for the plaintiffs according to the case agreed, from which judgment the defendants ¡■appealed.

Walter Clark, tor the appellants.

Smith & strong, contra.

Bymtom, J.

Thé intent to convey the fee simple is clearly 'Expressed and is not denied, and the only question submitted for our decision is, whether the deed conveys a fee simple, as •was intended, or only a life estate. It is the duty of the -court to give the deed such a construction as will carry out the intent of the parties to it, if it can be done according to •the rules of construction which have been adopted by the •court. The facts of the case are so like Phillips and wife v. Thompson and wife, 73 N. C. Rep., 543, that it is only necessary to refer to that cáse as governing our decision in this. The confusion here, as in that case, is produced by the attempt to incorporate a clause of warranty with the ha bend vm. By -'•excluding from the deed, or putting in a parenthesis, tliakpor-vtion of the instrument purportiong to make a warranty, the deed becomes intelligible, and tliougli very inartificially drawn, it conveys a fee simple estate to tbe bargainee. See also Armfield v. Walker, 5 Ired., 580, and Phillips v. Davis, 69 N. C. Rep., 117.

There is error. Judgment reversed and judgment for the-defendant according to the case agreed.

Per Curiam. Judgment accordingly.