#### GEORGE ACKER and Wife et al. v. ELIZABETH L. PRIDGEN.

(Filed 20 March, 1912.)

1. Deeds and Conveyances — Interpretation—Intent.

A deed will -be construed so as to effectuate tbe intent as gathered from tbe entire instrument when it can be done by any reasonable interpretation.

2. Same — Habendum—Remainders.

A conveyance of land, in the premises, being “unto tbe party of tbe second part and to his heirs and assigns,” and in the habendum, unto the second party “during the term of his natural life, and after his death” to certain named children of his: Held, the failure to mention the children as formal parties does not avoid the limitation to them by way of remainder.

3. Same — Rule in Shelley’s Case — Heirs of the Body.

The premises of a deed to lands being to the “party of the second part and to his bodily heirs and assigns,” and in the habendum “during the term of his natural life, and after his death” to certain named children: Held, the words bodily heirs construed with the words of the habendum to mean children.

4. Deeds and Conveyances — Interpretation—Habendum—Strangers —Limitations.

While a stranger to a deed cannot be introduced in the haben-dum clause to take in fee, he can take in remainder, when by construction of the entire instrument it appears that the intention of the parties is thus given effect.

5. Deeds and Conveyances — Interpretation—Stare Decisis — Limitation — Rule in Shelley’s Case.

The doctrine of stare decisis invoked by- the defendant cannot be given effect in this case, as she acquired the property by deed from her husband for a nominal consideration, and not being a purchaser for value, could stand in no better attitude than her grantor.

Appeal from O. H. Allen, J., at January Term, 1912, of New HaNOveR, on case agreed.

Civil action to recover possession of a certain lot of land described in tbe pleadings.

From a judgment for plaintiffs tbe defendant appeals.

Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Brown.

*338 E. K. Bryam,, Bellamy & Bellamy for plaintiffs.

IT. McGlammy, 8. M. Empie, for defendant.

BeowN, J.

On 12 August, 1882, Moses Moore conveyed tbe land in controversy to Jobn Pridgen and wife, Peggie, tbe premises being, “unto tbe parties of tbe second part and to tbeir beirs and assigns forever”; tbe babendum being: “To bave and to bold tbe said property unto Jobn Pridgen and wife, Peggie, during tbe term of tbeir natural lives; and after tbeir death to Marion Pridgen, Ellen Beatty, and any other child or children that may be begotten by him at any time during bis marriage with Peggie Pridgen, bis wife, to them and tbeir assigns forever.”

Peggie Pridgen died and Jobn Pridgen married tbe defendant in 1889 and on 13 October, 1904, for tbe nominal consideration of $5 executed a deed in fee to tbe defendant for tbe land in controversy.

Jobn Pridgen died 10 August, 1905.

Tbe judge below held that Jobn Pridgen took only a life estate under tbe Moore deed, and that tbe remainder over to Marion Pridgen and others was good, and that tbe plaintiffs, tbe remaindermen, were entitled to recover.

In tbeir brief tbe learned counsel for defendant state “that under tbe decisions as lately enunciated by our Supreme Court, tbe Court has correctly decided this case, following the authority in tbe cases of Triplett v. Williams, 149 N. C., 394, and supported in principle in tbe eases of Condor v. Secrest, id., 201; Sprinkle v. Spainhour, id., 223.”

They argue at length and with much earnestness that those decisions should not be followed, but overruled.

In tbe Triplett case, which has been repeatedly cited and approved in subsequent opinions of this Court, we admitted tbe technical effect of tbe ancient rule of the common law as applied to tbe construction of deeds, but we also recognized tbe more enlightened rules of construing deeds which bave obtained in all tbe courts of tbe country, and as well in tbe English courts, in a more enlightened age.

*339It is said in that case: “But this doctrine, which regarded the granting clause and the habendum and tenendum as separate and independent portions of the same instrument, each with its especial function, is becoming obsolete in this country, and a more liberal and enlightened rule of construction obtains, which looks at the whole instrument without reference to formal divisions, in order to ascertain the intention of the parties, and does not permit antiquated technicalities to override the plainly expressed intention of the grantor.”

In that opinion there are cited an array of cases and text-writers in suppprt of the views there expressed.

This more enlightened rule of construction, has been previously recognized and stated by Mr. Justice Walker in Gudger v. White, 141 N. C., 513, in these words: “It is not difficult by reading the deed to reach a satisfactory conclusion as to what the parties meant, and we are required by the settled canon of construction so to interpret it as to ascertain and effectuate the intention of the parties. Their meaning, it is true, must be expressed in the instrument; but it is proper to seek for a rational purpose in the language and provisions of the deed, and to construe it consistently with reason and common sense. If there is any doubt entertained as to the real intention, we should reject that interpretation which plainly leads to injustice, and adopt that one which conforms more to the presumed meaning, because it does not produce unusual and unjust results.”

Those writers and courts who recognize the generally preponderating influence of the premises of a deed in determining the estate conveyed admit that there are instruments in which the intention of the grantor is so plainly manifested in the haben-dum that it will control the premises.

Mr. Devlin in his work on deeds says: “It may be formulated as a rule, that where it is' impossible to determine from the deed and surrounding circumstances that the grantor intended the habendum to control, the granting words will govern, but if it clearly appears that it was the intention of the grantor to enlarge or restrict the granting clause by the habendum, the latter must control.” 1 Devlin on Deeds, sec. 215; Dodine v. *340 Arthur, 91 Ky., 53; Fogarty v. Stack, 8 S. W. Rep., 846; Barnett v. Barnett, 104 Cal., 298; Moore v. Waco, 85 Tex., 206; Dorem v. Gillum, 136 Ind., 134.

Even the common-law judges did not always confine themselves to the strict letter of the law in construing deeds, and applying the rule in Shelley’s case, we find it not uncommon to construe “bodily heirs” or even the word “heirs” itself to mean children, or issue, when the context of the instrument plainly indicated the manifest intention. Puckett v. Morgan, post, 344.

That the grantor, Moore, used the word “heirs” in the premises in the sense of children is plainly manifest from the context of the entire deed. The words of' the habendum qualify and explain what is stated in the premises, and in the habendum the children are specified who are to take in remainder, viz., the two plaintiffs, Marion Pridgen, Ellen Beatty, children by former marriages, and any other child of John Pridgen and his wife, Peggie.

The fact that their names are not mentioned as among the formal parties to the deed does not avoid the limitation by way of remainder.

While a stranger to a deed cannot be introduced in the haben-dum clause to take as grantee, he can take in remainder by way of limitation, when by construction of the entire instrument it appears that the intention of the parties is given effect. Condor v. Secrest, 149 N. C., 201.

The defendant invokes the doctrine of stare decisis, and claims that a rule of property had been established by the older decisions which should protect her title.

We do not think the principle laid down in Hill v. Brown, 144 N. C., 117; Hill v. R. R., 143 N. C., 539, can be properly applied here.

. In the first place, the defendant acquired the property by deed from her husband, John Pridgen, the life tenant, in 1904, for a nominal consideration only. She is not a purchaser for value, and stands in no better attitude than her grantor.'

In the second place, such a remainder as is created in favor of these plaintiffs in the Moore deed could have been created in *341tbe earliest stages of tbe common law. Blair v. Osborne, 84 N. C., 420; Shepherd’s Touchstone, 151; 2 Roll. Ab., 68.

Tbe judgment of tbe Superior Court is

Affirmed.