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Thomas Burleson v. Emily Stewart.
*585 AlleN, J.
This controversy between the plaintiff and the defendant does not affect the title of the grantors in the deed, who are the owners in fee of the remainder interest in the land as tenants in common.
The only question is as to the right of the defendant to a life estate, which depends upon a construction of the deed in the light of the surrounding circumstances, and, “Under the modern rule of construction, little importance is attached to the position of the different clauses in a deed, and the courts look at the whole instrument, without reference to formal divisions, in order to ascertain the intention of the parties.” Thomas v. Bunch, 158 N. C., 178.
Under the authority of In re Dixon, 156 N. C., 26, approved in Thomas v. Bunch, 158 N. C., 179; Baggett v. Jackson, 160 N. C., 31, and Beacom v. Amos, 161 N. C., 366, the reservation in the deed would undoubtedly have given to the defendant a life estate if she had been the wife of the plaintiff, but we must look at the whole deed and give effect to the intent of the parties.
The plaintiff was the owner of the land and the defendant joined in the deed as his wife, and it is clear that the reservation in the deed was not to the defendant, but to the wife of the plaintiff, and as her marriage with the plaintiff was void, she having at that time a living husband, there was no one to take the benefit of the reservation to her according to the intent of the owner of the land, and it would therefore be void.
Again, the deed was executed either by the mutual mistake of both parties, if both believed the former husband to be dead, or by the mistake of the husband, the plaintiff, and the fraud of the wife, if she married the plaintiff knowing that her former husband was living, and in either event the court of equity would reform the deed and restore the plaintiff to his rights as owner of the land.
We are therefore of opinion that the defendant has no rights in the land in controversy, and that the plaintiff is entitled to recover possession thereof.
Eeversed.