Pritchard v. . Bailey

Shepherd, C. J.: The deed from Daniel Payne to Sarah M. Chambers, executed in 1882, conferred upon her an estate in fee simple, and, under the doctrine declared in Hardy v. Galloway, 111 N. C., 519, and the authorities therein cited, the provision that she should not sell the property during her life was repugnant to the grant and in contravention of the principle of public policy which forbids the imposition of unreasonable restrictions upon the right of alienation. The property not having been conveyed in trust, but directly^, to Mrs. Chambers, she acquired the legal title; and as she had the legal capacity to convey, with the consent of her husband, the only question remaining to be considered is whether the deed from herself and husband did actually convey to the trustee a fee simple estate in the land in controversy. The indebtedness secured in said trust was, so far as we are informed, the joint indebtedness of herself and husband, and the recital shows that the sole object of the conveyance was to secure the payment of the same. The conveyance is in fee with a warranty that the parties of the first part are seized in fee, and the trustee is directed, in case of default, to sell the land at public auction and convey title to the purchaser— the surplus, after paying the indebtedness and expenses, to be paid to the parties of the first part. The hus *526 band having no title to the property, it is manifest that not only the whole purpose of the deed, but also its operative words, will be entirely defeated if the joinder of Mrs. Chambers was simply for the purpose of releasing the right of dower and homestead in the land. It is a cardinal rule in the interpretation of writings that they shall, if possible, be so interpreted, ut res magis valeai quam pereat, so that they shall have some effect rather than none, and that such a meaning shall be given to them as may carry out and most fully effectuate the intention of the parties. Broom’s Max., 413. Every part of the instrument must be considered in arriving at the intention, and it should be kept in mind that where the language is susceptible of two constructions, the one less favorable to the grantor is to be adopted. It is also a well settled principle that, unless a contrary intent is manifest, “a deed must be construed in all its parts with respect to the actual, rightful state of the property at the time at which the deed is executed.” 2 Devlin on Deeds, 848-851. Applying these rules to the case before us, we are entirely satisfied that Mrs. Chambers intended to convey her interest in the said land. It was her property, and the printed words (which it is agreed the draftsman neglected to strike out of the form), to the effect that she joined in the deed for the purpose of releasing her dower and homestead, when she could, by no possibility, have had any such interests, are wholly inconsistent with her intention, as indicated by the entire scope and meaning of the instrument. As we have said, she alone had the title, and she joined in the deed as a conveying party for the declared purpose of securing the indebtedness. There was no dower or homestead interest to be released, and if the printed words are to control, there is nothing upon which the deed can operate. We think his Honor was correct in holding that the true intent and meaning of the deed was that Mrs. Chambers conveyed the property in fee to the trustee. Affirmed.