Roten v. State

HedRICK, J. G.S. 1A-1, Rule 56(b), Rules of Civil Procedure, provides: “A party against whom a claim, counterclaim, or crossclaim is asserted or a declaratory judgment is sought, may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.” G.S. 1A-1, Rule 56(c), Rules of Civil Procedure, establishes the procedure to be followed by the court when considering a motion for summary judgment as follows: “The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” In the instant case we hold that the court properly allowed the defendant’s motion for a summary judgment. The appellants argue in their brief that the deed from T. B. Finley and wife to the State of North Carolina is not absolute in that it contains conditions subsequent which render it unacceptable. G.S. 113-34 provides: “The Governor of the State is authorized upon the recommendation of the Board of Conservation and Development to accept gifts of land to the State, the same to be held, protected and administered by said Board as State Forests, and to be used so as to demonstrate the practical utility of timber culture and water conservation, and as refuges for game. Such gifts must be absolute except in such cases as where the mineral interest on the land has previously been sold.” The State on the other hand contends that the deed is absolute for that the language contained therein merely expressed the wishes of the grantor and the purposes for which the conveyance was made. A careful examination of the deed from T. B. Finley and his wife to the State of North Carolina shows that it contains many clauses whereby the grantor expressed his desires that certain things be done upon the property by the State. In Hall v. Quinn, 190 N.C. 326, 130 S.E. 18 (1925), we find the following language: “An estate on condition expressed in the grant itself is where an estate is granted, either in fee simple or otherwise, with an express qualification annexed whereby the estate granted shall either commence, be enlarged, or be defeated, upon performance or breach of such qualification or condition; and a condition [648] subsequent operates upon an estate already created and vested, rendering it liable to be defeated if the condition is broken. 2' BL, 164 ... . "... A clause in a deed will not be construed as a condition subsequent unless it expresses in apt and appropriate language the intention of the parties to this effect (Braddy v. Elliott, 146 N.C., 578) and a mere statement of the purpose for which the property is to be used is not sufficient to create such condition, (cites omitted). In Rawson v. School District, 7 Allen, 125, Chief Justice Bigelow, in a discussion of the question, made use of the following language, which we may adopt as applicable in the present case: ‘We believe there is no authoritative sanction for the doctrine that a deed is to be construed as a grant on a condition subsequent solely for the reason that it contains a clause declaring the purpose for which it is intended the granted premises shall be used, where such purpose will not inure specially to the benefit of the grantor and his assigns, but is in its nature general and public, and where there are no other words indicating an intent that the grant is to be void if the declared purpose is not fulfilled. . . After carefully examining the deed in the present case, it is our opinion that the language contained therein does not create an estate on condition subsequent. The language used by our Supreme Court in Lassiter v. Jones, 215 N.C. 298, 1 S.E. 2d 845 (1939), best sums up our decision: “The deed does not create an estate on condition subsequent for the reason that nowhere in the deed is there a reverter or reentry clause. There is no language in the deed and no intention can be gathered from it that a reversionary interest exists and the grant is limited. There is no language in the deed that can be construed as a forfeit, that the property is either transferred to another or reserved by the original grantor.” Although the appellant has brought forward other assignments of error in this appeal they are contingent upon the finding in regard to the quality of the deed. Since it is our decision that the deed in the present case is absolute, the other assignments of error are overruled. The summary judgment dated 10 March 1970 dismissing plaintiff’s action is Affirmed. BeoCK and Beitt, JJ., concur.