Bagwell v. . Hines

Hoke, J. It was formerly held in this jurisdiction, and with some strictness, that the habendum of a deed was not allowed to destroy an estate or interest definitely conveyed in the premises or to create an estate that was necessarily repugnant to it. Wilkins v. Norman, 139 N. C., 39; Blackwell v. Blackwell, 124 N. C., 269; Rowland v. Rowland, 93 N. C., 214; Hafner v. Irwin, 20 N. C., 570. The position was somewhat modified in the well-considered case of Triplett v. Williams, 149 N. C., 394, opinion by Associate Justice Brown, wherein it was held that except when otherwise controlled by an arbitrary rule of law, as by the rule in Shelley’s case, the question was largely one of intent, and if on a perusal of the entire instrument, including the habendum, it clearly appeared that a lesser estate was intended than that conferred in the premises, such a construction should prevail and the intent of the grantor be given effect, a case that has been cited with approval in numerous decisions of the Court. Considering the record in view of these positions and in full recognition of the principle approved in Triplett v. Williams, we are of opinion that his Honor was clearly right in his decision that the plaintiff can make a good title to the property. In the premises of the deed a fee simple in the property is clearly conveyed to plaintiff and his sister- — it says so in express terms — and there is nothing in the subsequent portions of the deed that is necessarily repugnant to the estate and interest so definitely conferred. True, in the habendum the deed seems to indicate that the grantees should first be the recipients of a life estate and with a life estate to the survivor, but in this part of the deed the interest conveyed would seem to be a fee simple under the rule in Shelley’s case, Walker v. Taylor, 144 N. C., 175, and assuredly there is in the habendum no repug-nancy expressed with sufficient clearness to affect or modify the definite estate in fee simple conveyed to plaintiff and his sister in the premises of the deed. The sister having died leaving a last will and testament conveying all of her interest to plaintiff, in our opinion, as stated, the title offered is a good one and defendants must be held to comply- with their contract of purchase. Affirmed.