Waters v. North Carolina Phosphate Corp.

VAUGHN, Judge. The sole question is whether the language in the deed that we have heretofore quoted, and which is found only in the same paragraph with the description, creates a valid right of reentry on breach of the stated conditions. The conditions and the right of reentry are not referred to anywhere else in the deed. The trial judge concluded that the language was ineffectual . and we must agree. We have duly considered the strong arguments in defendants’ brief and the astute analysis of the cases discussed therein. We conclude, nevertheless, that our decision must be guided by that of the Supreme Court in Whetsell v. Jernigan, 291 N.C. 128, 229 S.E. 2d 183, which affirmed the decision of this Court in Whetsell v. Jernigan, 29 N.C. App. 136, 223 S.E. 2d 397. Whetsell involved a reverter clause that appeared only at the end of the description and was not referred to elsewhere in the deed. The Court held that the clause was ineffective. We see no significance in any differences between the deed in Whetsell and the one in the case at bar insofar as the relevant propositions of law are concerned. There, as here, the conveyance was executed prior to the effective date of G.S. 39-1.1. That statute, in effect, requires the Court to determine the effect of instruments of conveyance containing inconsistent clauses (executed after 1 January 1968) on the basis of the intent of the parties as it appears from all of the provisions of the instrument. In Whetsell, the Court considered its decisions in Artis v. Artis, 228 N.C. 754, 47 S.E. 2d 228; Oxendine v. Lewis, 252 N.C. [307] 669, 114 S.E. 2d 706, and similar cases as having established the proposition that words appearing only in the description of a deed are not sufficient to limit the unqualified fee conveyed by the granting clause when the habendum clause contains no limitations on the fee therein conveyed and a fee simple title was warranted in the covenants of title. The Court then reasoned that, since the General Assembly provided that its provision should apply to all conveyances executed after 1 January 1968, the Court should not change the proposition voiced in Artis, Oxendine and other earlier cases in interpreting conveyances executed prior to that date. For the reasons stated, the judgment is affirmed. Affirmed. Judges Hedrick and Clark concur.