Opinion
(Filed 19 February, 1908.)
1. Judgments — Construction.
Whether a decree of the court should be considered as a contract, or otherwise, it should be so construed as to give effect to each and every part, and bring all the different parts into harmony, as far as this can be done by fair and reasonable intendment.
2. Same — Estate in Fee — Restrictive Hereditable Qualifications.
A decree declaring certain defined lands to be "the absolute lands of J. N. L., to have and to hold unto him and his heirs in fee simple forever," etc., providing "That a portion of said land, equal in valuation to $1,000 upon the death of J. N. L. without lawful children surviving him, shall descend to those persons who would have taken by descent, in such event, the land descended to him from his mother, and that the remainder of said tract shall descend to those persons upon whom the law shall cast it at his death," should be construed to confer upon J. N. L. the land in fee, with absolute power of disposition; and the proviso simply annexed to the land a restrictive hereditable quality, that in case he should die without having made disposition of the same, and without children him surviving, it should, to the amount indicated, descend to his heirs ex parte materna.
CASE AGREED, heard by O. H. Allen, J., at Fall Term, 1907, of PERQUIMANS.
Aydlett Ehringhaus for plaintiffs.
W. M. Bond and Charles Whedbee for defendants.
There was judgment for plaintiffs, and defendants excepted and appealed.
Plaintiffs sued to recover $350 and interest, as the purchase price of standing timber on a certain tract of land in Perquimans County. Defendants admitted having entered into an obligation to pay plaintiffs that amount for the timber, provided a good title thereto could be made by plaintiffs, and resisted recovery on the ground that no such title was forthcoming. Plaintiffs, having made formal tender (532) of a deed conveying the timber to defendants, instituted the present action and recovered judgment.
The facts relevant to the inquiry, as set out in the case agreed, are as follows: "John N. Lamb, one of the plaintiffs and the owner by inheritance of several tracts of land, being of `weak understanding and not expecting children to himself,' desired and intended that these lands, or a part of them, should go to the children of his brother, Benjamin F. Lamb, for `their setting out and support in life,' and executed several conveyances in the endeavor to carry out this intent. It was afterwards ascertained that those deeds did not accomplish the purpose desired, and thereupon the parties interested brought the matter before the court, and, in an action regularly and properly constituted in the Superior Court of Perquimans County, at Spring Term, 1884, a decree was rendered, by which the rights and interests of the parties were established and declared, the portion of said decree referring especially to the tract of land now in question being expressed as follows: "It is therefore considered and adjudged by the court that the tract of land named in the pleadings as containing 105 acres — bounded as follows, viz., for boundaries, see the original survey made, according to agreement, under directions of Thomas E. Winslow, which is hereto annexed, marked "B," and which is to be registered as hereafter directed — be and is hereby declared to be the absolute property of the said John N. Lamb, to have and to hold unto him and his heirs in fee simple, forever. It is further considered and adjudged that, as appurtenant to and running with said land, the said John N. Lamb shall have right of drainage, where necessary, through the lands of the defendants, their heirs and assigns, forever. It is further considered and adjudged that a portion of said land, equal in valuation to $1,000, upon the death of the said John N. Lamb without lawful children him surviving, shall descend to those persons who would have taken by descent, in such event, the land that descended to him from his mother, and that the remainder of said tract of land shall descend to those persons upon whom the law shall cast (533) it at his death.'"
Afterwards, to wit, in February, 1901, John N. Lamb conveyed this piece of property to his coplaintiff, C. H. White, reserving a life estate therein to himself, and reciting that said White is to care for and maintain said Lamb during his natural life. Both John N. Lamb, the grantor, and C. H. White, the grantee, in the last-mentioned deed, joined in this suit and in the deed for the timber tendered to defendants before instituting the same. The title of plaintiffs rests upon the decree as above set out, and defendants object to its validity on the ground that, by proper construction, the second clause of the decree, "That a portion of land equal in valuation to $1,000, on the death of said Lamb without children him surviving, shall descend to those persons who would have taken by descent, in such event, the land devised to him from his mother, and the remainder," etc., so qualifies the first, which gave to said Lamb the absolute ownership, that he has only a life estate in the property, or holds the same impressed with a trust to the amount of $1,000 in favor of "those persons who would take at his death the land inherited from his mother." But we are of the opinion that this position cannot be sustained.
Whether the decree should be considered as a contract, as plaintiffs contend, or otherwise, it should be so construed as to give effect to each and every part of it, and bring all the different parts into harmony, as far as this can be done by fair and reasonable interpretation. Modlin v. R. R., 145 N.C. 218; 23 Cyc., 1101. And, applying this rule, we have no hesitation in holding that, by the terms and correct interpretation of this decree, John N. Lamb became and was the owner in fee of the property, with absolute power of disposition, and that the subsequent clause placed no restriction on this power, but simply (534) annexed to the land this restricted hereditable quality, that in case he should die without having made disposition of the same, and without children him surviving, it should, to the amount indicated, descend to his heirs ex parte materna, this being, no doubt, for the reason that lands to some amount had come to him in that line of descent. Our conclusion finds support in a later clause of the decree, referring to the same property, as follows: "It is further considered and adjudged that the said Benjamin F. Lamb make and execute to the said John N. Lamb a deed in fee simple to said tract of land; that the infant defendants execute a like deed upon their arriving at full age and as they reach their majority," showing that, as to this, J. N. Lamb was to be the absolute owner. The effect of this decree, then, being to place the title in John N. Lamb, with absolute power of disposition, and all the holders of that title having joined in tendering defendants a deed for the timber, and being parties plaintiff, there is no valid objection shown to the demand of plaintiffs, and the judgment rendered in their favor must be
Affirmed.