Whetsell v. Jernigan

*134 Justice Copeland

dissenting.

The majority concedes that its decision in this case will thwart the grantor’s apparent intent and further indicates that it would be inclined to disavow its rule laid down in Artis v. Artis, 228 N.C. 754 , 47 S.E. 2d 228 (1948) and extended in Oxendine v. Lewis, 252 N.C. 669 , 114 S.E. 2d 706 (1960), were it not for the legislature’s passage of G.S. 39-1.1. The majority’s interpretation of the legislature’s prospective application of G.S. 39-1.1 as an approval of the Artis-Oxendine rule is purely speculative.

The majority’s concern that land titles remain stable is certainly respectable but should not be taken to extremes. First of all, to revere the Artis-Oxendine rule as one of North Carolina’s “well settled rules of property” which should not be tampered with is unjustified. Our Court has reversed itself on this issue within the last thirty-five years, seemingly unmindful of the effect on land titles. In Jefferson v. Jefferson, 219 N.C. 333 , 13 S.E. 2d 745 (1941) and Krites v. Plott, 222 N.C. 679 , 24 S.E. 2d 531 (1943), we recognized grantor’s intent as drawn from the four corners of the instrument only to return in Artis v. Artis to a harsh technical rule. The majority appears implicitly, if not explicitly, to agree that the Artis-Oxendine rule is a bad rule in that it frustrates grantor’s intent. Following the majority’s reasoning, any inequitable rule of property law once pronounced must be upheld ad infinitum because of the sanctity of land titles or until the legislature rectifies our mistakes.

More importantly, the notion that admittedly arbitrary rules once laid down should be preserved for the sake of stable land titles should only be applied to technical rules that serve some justifiable social purpose. I submit that the reason our Court has vacillated on this rule in the past and the reason the legislature has acted to curb this rule is that it furthers no useful social purpose. The majority opinion notably lacks any mention of a policy reason supporting the rule, but points only to the policy behind keeping the existing rule intact once it has been handed down for better or for worse. When the relevant policy considerations are examined they cut in favor of an abandonment of the Artis-Oxendine rule. See Webster, Doubt Reduction Through Conveyancing Reform — More Suggestions in the Quest for Clear Land Titles, 46 N.C. L. Rev. 284 , 295-96 & n. 42 (1968).

*135 Apparently, North Carolina was at one time recognized as a leader of the “modern” and now majority view giving preference to the intention of the partes as gleaned from the four corners of the deed. Note, Deeds — Construction—Use of Fee Simple Form Versus Intent to Convey Life Estate, 39 N.C. L. Rev. 283 , 284 & n. 9 (1961). The rationale behind the “modern view” notes that a rule favoring certain clauses of a deed over other clauses is not a rule of property but merely a rule of construction which should be resorted to when the court cannot determine which of the clauses the grantor intended to be controlling. See 84 A.L.R. 1054 , 1063-64 (1933). What this Court has done is to convert into a rule of law what should be a rule of construction, providing at most a presumption in favor of the estate described in the formal clauses.

While it is true that most of the cases which call for the grantor’s intent to prevail where it can be determined, address conflicts between the granting and habendum clauses and not conflicts between those clauses and the description in the deed, our Court has not suggested a reason why the rule should be different in the two conflict situations. See 58 A.L.R. 2d 1374 , 1393 (1958) ; 84 A.L.R. 1054 , 1063 (1933). Certainly the language of our own cases and those of other jurisdictions is broad enough to encompass any conflict among clauses in a deed concerning the extent of the estate conveyed. In Triplett v. Williams, 149 N.C. 394, 397-98 , 63 S.E. 79, 80 (1908), which has yet to be overruled, we said:

“ ‘Words deliberately put in a deed, and inserted there for a purpose, are not to be lightly considered, or arbitrarily thrust aside.’

“To discover the intention of the parties ‘is the main object of all constructions. When the intention of the parties can be ascertained, nothing remains but to effectuate that intention.’

“We can see no reason why the manifest intention of the grantor should be so carefully regarded in determining what property his deed covers and so entirely disregarded in determining what estate in that property the grantee shall take.

“ ‘The inclination of many courts at the present day is to regard the whole instrument without reference to formal divisions. The deed is so construed, if possible, as to give *136 effect to all its provisions, and thus effectuate the intention of the parties. When an instrument is informal, the interest transferred by it depends not so much upon the words- and phrases it contains as upon the intention of the parties as indicated by the whole instrument.’ ” [Citations omitted.] See Mattox v. State, 280 N.C. 471 , 186 S.E. 2d 378 (1972); Lackey v. Board of Education, 258 N.C. 460 , 128 S.E. 2d 806 (1963).

Although we may distinguish Triplett v. Williams by limiting it to its facts, a conflict between a habendum and a granting clause, differences in treatment should be based on substantive distinctions.

There can be no doubt as to what the grantor intended when he placed his reverter clause in the present deed. To place the grantor in a straightjacket and say that he must put his re-verter clause at a particular place in the deed is to make a sham of the law. To say that we must continue the Artis-Oxendine rule because it might upset titles in North Carolina is to decide this case on the basis of an unfounded fear, given that our recent change in the rule precipitated no such disastrous consequences. Moreover, I cannot conceive of an attorney unconditionally passing title on property with the words that are included in this deed, regardless of where they are inserted.

The General Assembly expressed its concern over this Court’s rule by enacting G.S. 39-1.1. Justice Bobbitt (later Chief Justice) and the late Justice Rodman, eminent scholars in the field of real property law, voiced their displeasure at the extension of this rule in Oxendine, supra. Clearly, the polar star should always be the grantor’s intent and this can be determined only by examining the deed from its four corners.

For these reasons, I would reverse the Court of Appeals and respectfully dissent.