Holloway v. . Green

AlleN, J. It is now the well settled doctrine of this Court that the technical rules of the common law as to the division of deeds into formal parts will not prevail as against the manifest intention of the parties, ascertained by an examination of the whole deed. Triplett v. Williams, 149 N. C., 394; Acker v. Pridgen, 158 N. C., 339. It is.also a well recognized principle that in a conveyance to husband and wife they take by entireties, with the right of survivorship (Bruce v. Nicholson, 109 N. C., 202), but that a conveyance may be made to them as tenants in common, when there is no survivorship. Eason v. Eason, 159 N. C., 539. Restraints upon alienation are void (Trust Co. v. Nicholson, 162 N. C., 264), and since 1879 a deed is “held and construed to be a conveyance in' fee, whether the word heirs shall be used or not, unless such conveyance shall in plain and express words show, or it shall be plainly intended by the conveyance or some part thereof, that the grantor meant to convey an estate of less dignity.” Rev., sec. 946. Let us then read the deed under consideration in the light of these authorities. The grantees, John T. Davis and wife, Luella Davis, take as tenants in common, subject to a reservation of the possession of the land for a period of twelve years for the benefit of the grantors, F. J. Holloway and wife, Martha D. Holloway, and as the attempted restraint upon alienation must be eliminated, except as it aids in the interpretation of' the valid parts of the deed, the only clause which gives color to the contention that there is a limitation over as to the half interest of the tenant in common first dying is the conclusion of the habendum, “the ' one-half belonging to the one dying to go to his or her heirs or devisees in fee.” *95 This language, instead of showing an intention to • convey an estate of less dignity than a fee to Davis and wife, strengthens and confirms the presumption raised by the statute. It is the one-half interest belonging to the one dying that is to go in fee, thex-eby recognizing the transmission of the estate after death, which could only be of an estate of inheritance, and it is “to go to his or her heirs or devisees in fee.” Words used in a deed should be construed according to their usual and ordinary meaning, unless a contrary intent appears (13 Cyc., 605), and if it is said that A. owns an interest in land, which upon his death will go to his heirs or devisees in fee, the natural and reasonable conclusion is that A. has an estate of inheritance which will descend to his heirs if he leaves no will, and to his devisees if he dies leaving a will. In adopting this construction we do not violate the rule that some meaning must be given to each word and clause, if practicable, as the parties to the deed evidently had in mind the doctrine of survivorship in conveyances to husband and wife, and wished to make it certain that when one died one-half interest in the land should descend to his or her heirs or be transmitted to his or her devisees, and should not go to the survivor, and it is for this purpose the clause was inserted. Another view which adds force to this construction is the clear intent manifested in the deed to make no distinction between the grantees, and to convey to each an equal interest in the land, which would be defeated if it should be held that there is a limitation over to the heirs or devisees of the one first dying, as the deed gives to the survivor the power to dispose of one-half in fee. We are therefore of opinion upon a consideration of the whole deed that by proper interpretation it reserves the possession of the land to the grantors, F. J. Holloway and wife, Martha D. Holloway, for twelve yeai-s and then conveys the fee to John T. Davis and wife, Luella Davis, as tenants in common; and that the last clause in the habendum was inserted to prevent the possibility of survivorship. The attempted restraint upon alienation is void, but, if not, it does not purport to deal with an alienation by both of the grantees joining-in a conveyance, and was intended to prevent one from introducing a stranger as a tenant in common with the other. It follows that the deed from Martha D. Holloway and John T. Davis and wife, Luella Davis, will convey an estate in fee to the defendant, F. J. Holloway being dead. Affirmed.