Appeal by plaintiffs from Stevens, Judge. Judgment filed 12 May 1981 in Superior Court, Wilson County. Heard in the Court of Appeals 4 March 1982.
Martin (Harry C.), Judge. Judges Martin (Robert M.) and Whichard concur.
Plaintiffs contend that the manifest intention of the grantors in the deed to the school board limited the conveyance to a grant
of less than fee simple and that "the trial judge erred by failing to consider all parts of the deed in determining the estate conveyed." Plaintiffs argue that the plain and express words indicate that the Peeles intended to grant a fee on condition subsequent.
Assuming, arguendo, that we adopt plaintiffs' position that the conditional provision in the deed must be given weight as an expression of the grantors' intent, we cannot agree that the provision has the effect of preserving in the grantors a right of entry for condition broken.
The future interest in real property known as the right of entry for condition broken arises after the creation of the possessory estate known as the fee simple estate subject to a condition subsequent. Typical language for the creation of a fee simple subject to a condition subsequent specifies that a grantee or devisee shall have a fee simple estate "on condition that," "provided that," but "to be null and void if" a certain event occurs, or to be forfeited upon the happening or failure of continuance of certain facts. This interest is the retention of a "right," or more accurately a "power," to reenter the premises or to institute an action to terminate the grantee's or devisee's possessory estate when the forfeiting event occurs
Webster, The Quest for Clear Land Titles -- Whither Possibilities of Reverter and Rights of Entry, 42 N.C.L. Rev. 807, 810 (1964) (emphasis ours).
The provision upon which plaintiffs rely to establish their right to the property in question contemplates not an unconditional right to reenter the premises or even to institute an action to terminate the defendant school board's possessory estate, but rather gives them a preemptive right to purchase the property for a specified amount of money upon certain conditions. The language is inconsistent with any purported intent of the grantors to retain an interest in the property conveyed.
However, we reject plaintiffs' contention for more compelling reasons. The facts of this case fall squarely within the rule enunciated in Artis v. Artis, 228 N.C. 754, 761, 47 S.E.2d 228, 232 (1948), that "where the entire estate in fee simple, in unmistakable terms, is given the grantee in a deed, both in the
granting clause and habendum, the warrantly being in harmony therewith, other clauses in the deed, repugnant to the estate and interest conveyed, will be rejected." See also Whetsell v. Jernigan, 291 N.C. 128. 229 S.E.2d 183 (1976); Kennedy v. Kennedy, 236 N.C. 419, 72 S.E.2d 869 (1952).
We agree with plaintiffs that the above-mentioned rule is one of construction and not one of law, and that it does not place an absolute bar to a consideration of the grantors' intent. At the threshold of plaintiffs' argument is that the use of words "successors in office" renders the language in the deed less than clear to convey an estate in fee simple, thus requiring the court to look beyond the language to ascertain the grantors' intent. ...