Boyd v. . Campbell

Adams, J. The deed is not invalidated by the clause in which the grantee purports to convey to himself. In every conveyance of land there must be a grantor, a grantee, and a thing granted. The grantor *401 cannot make bimself the grantee; but W. J. G. B. Boyd, wbo signed the deed, is named as tbe grantor, and with, the exception o£ one inadvertence the plaintiff is referred to as the grantee. The error is clerical and the objection must be resolved against the appellant under the principle stated in Berry v. Cedar Works, 184 N. C., 187. See, also, Yates v. Ins. Co., 173 N. C., 473. Whatever the former doctrine may have been the courts do not now regard with favor the application of such technical rules as will defeat the obvious intention of the parties to a deed, it being an elementary rule of construction that their intention as expressed in the deed shall prevail unless it is repugnant to the terms of the grant or is in conflict with some canon of construction or some settled rule of law. Seawell v. Hall, 185 N. C., 80; Lumber Co. v. Herrington, 183 N. C., 85; Pugh v. Allen, 179 N. C., 307; Williams v. Williams, 175 N. C., 160; Springs v. Hopkins, 171 N. C., 486. As a rule if there are repugnant clauses in a deed the first will control and the last will be rejected. Fortune v. Hunt, 152 N. C., 715; Wilkins v. Norman, 139 N. C., 40; Blackwell v. Blackwell, 124 N. C., 269. While this rule is in subordination to the position that the intent of the parties as embodied in the entire instrument is the end to be attained we must not lose sight of another principle, that is, that where rules of construction have been settled they should be observed and enforced. Wilkins v. Norman, supra; Midgett v. Meekins, 160 N. C., 42; Bagwell v. Hines, 187 N. C., 690. The following are the clauses to be considered: 1. To Pleas Clodfeler, his children, their heirs, and then to his grandchildren forever. (Premises.) 2. To the said Pleas Clodfellow, his children and then to his grandchildren forever and heirs and assigns. (Granting clause.) 3. To the said Pleas Clodfellow, to him and his children, their lives, heirs and assigns, and then to his grandchildren forever, only use and behoof forever. (Habendum.) Now, as to the first clause. Given, an estate to A. and his children; if A. has children when the deed is executed he and they take as tenants in common. Cullens v. Cullens, 161 N. C., 344. In Blair v. Osborne, 84 N. C., 417, cited in the appellant’s brief, the deed, which was executed prior to 1879 (C. S., 991), named the grantee in the premises, and in the habendum the grantee and her children; and it was held that the grantee took a life estate and the children a remainder. Here Pleas Clodfeler, or Clodfellow, and his children are mentioned in all the clauses; the cited case is, therefore, not controlling. If, in the assumed case A. has no child when the deed is executed he takes an *402 estate tail, which, under our statute, is converted into a fee. C. S., 1734; Cole v. Thornton, 180 N. C., 90. "When Boyd executed the deed in question the grantee was not married; he had no children; so the words “To Pleas Clodfeler his children their heirs,” make a'fee simple. "What effect, if any, has the phrase immediately following, “And then to his grandchildren forever”? A fee may be limited after a fee by a conditional limitation or an executory devise — this upon the theory that under the doctrine of shifting uses inheritance may be made to shift from one person to another upon a supervening contingency. Smith v. Brisson, 90 N. C., 284. But the contingency is essential. For example, a condition in a deed followed by a limitation over to a third person in case the condition is not fulfilled, or in case there is a breach of it, is a conditional limitation. If the condition is broken or not fulfilled, as the case may be, the first estate comes to an end and the subsequent estate arises. It is said to be conditional because the event or contingency destroys or abridges the first estate; it is termed a limitation because upon the happening of the contingency the estate passes to the person having the next expectant interest. Proprietors v. Grant, 3 Gray, 142. In this clause there is no event or contingency upon the happening or breach of which the estate to the grantee is to be defeated, abridged, or “cut down to make room” for the purported limitation to the grandchildren. Massengill v. Abell, ante, 240; McDaniel v. McDaniel, 58 N. C., 351. The latter part of the clause is, therefore, ineffectual to divest the fee just previously granted. The grandchildren cannot take as contingent remaindermen for the reason that there is no precedent particular estate to support the remainder. No remainder can be limited after the grant of estate in fee; for a part cannot be reserved after the whole is disposed of. McDaniel v. McDaniel, supra. The same reasoning; applies to the second clause; and as to the third it is apparent that the words, “their lives heirs and assigns,” are repugnant. There is no presumption that the grantor assumed the impossible task of conveying to the grantee in a single phrase both a life estate and a fee simple.. Either “their lives” or “heirs and assigns” must yield; and obviously the former, because it is repugnant to the fee previously conveyed, while the latter is entirely consistent with it. Here also the attempted limitation to the grandchildren is of no effect in destroying or abridging the fee. The only question is the quantity of the estate; and this, as we understand, the appellant admits is not affected by words used in the covenant of seizin. The judgment is Affirmed.