#### VICTOR S. BRYANT, Executor of the Estate of MRS. AMANDA C. SMITH, Deceased, v. MINNIE S. SHIELDS and Husband, IRA W. SHIELDS; DAISY E. BEASLEY and Husband, J. I. BEASLEY; MAMIE R. SUITT and Husband, F. L. SUITT.

(Filed 7 January, 1942.)

• 1. Deeds § 11—

Ancient, technical rules as to the effect of and importance to be given ' the several parts of a deed will not be strictly applied when to do so would defeat the obvious intention of the parties as gathered from the instrument as a whole.

2. Same—

The cardinal rule in the construction of a deed is to ascertain and give effect to the intent of the parties as gathered from the language of the instrument construed as a whole, but recognized canons of construction and settled rules of law may not be disregarded.

3. Same—

As a rule, where clauses in a deed are repugnant, the first in order will be given effect and the latter will be rejected.

4. Deeds § 13a—

The habendum in a deed cannot introduce one who is a stranger to the premises to take as grantee except by way of remainder, since ordinarily the habendum relates to the quantum of the estate while the premises and the granting clauses designate the grantee and the thing granted.

5. Same: Husband and Wife § 11 — Deed failing to name wife in premises or granting clause, but naming her only in habendum does not create estate by entireties.

The deed in question named the husband in the premises, and in the granting clause conveyed to him and his heirs and acknowledged the receipt of consideration from him, but in the habendum named the husband and wife and their heirs. Held: The instrument considered as a whole does not disclose an intention to create an estate by entireties, and further, such construction would be at variance with the rule that a *629stranger to the premises cannot be introduced in the ha'bendum to take as grantee except by way of remainder, which rule of construction has not been abrogated or modified. Midgett v. Brooks, 34 N. C., 145, cited and distinguished.

6. Judgments § 32—

A final judgment, rendered on the merits, by a court of competent jurisdiction, is conclusive of rights, questions and facts in issue, as to the parties and privies, in all other actions involving the same matter.

7. Judgments § 33d—

Where the widow in proceedings for allotment of dower in which the executor and heirs-at-law are made parties, describes a particular tract of land which she avers was owned by her husband in fee simple, and asks that her dower be allotted therein, and her dower is assigned as prayed, and allotment confirmed by proper decree, the widow,' and after her death her executor, is estopped from asserting that the tract of land was owned by entireties and that she acquired title by survivorship, the doctrine of res judicata being applicable to proceedings for allotment of dower.

Appeal by plaintiff from Frizzelle, J., at April-May Term, 1941, of Dtjbham.

Affirmed.

This was an action to determine tbe title to a certain lot of land on Main Street, in tbe city of Durham.

Amanda C. Smith, plaintiff’s testatrix, was tbe wife of John W. Smith. Plaintiff alleged that by deed of 0. G. Ross an estate by'the entireties in the lot described was created, and that upon the death of John W. Smith title to the lot vested in Amanda C. Smith by survivor-ship. The material parts of the deed are as follows:

“This deed, made this the 16th day of May, 1899, by C. G-. Ross and wife, Nannie E. Ross, of Durham County and State of North Carolina, of the first part, to John W. Smith of Durham County and State of ., of the second part :

“Witnesseth, that said 0. G. Ross and wife, Nannie E. Ross, in consideration of Twelve Hundred and Fifty Dollars to them paid by John W. Smith, the receipt of which is hereby acknowledged, have bargained and sold, and by these presents do hereby bargain, sell and convey to said John W. Smith and his heirs and assigns, a certain tract or parcel of land in Durham County, State of North Carolina, adjoining the lands of Dr. A. G-. Carr, F. 0. Geer and others, bounded as follows, viz.: (Here follows description of the lot.)

“To have and to Hold the aforesaid tract or parcel of land, and all appurtenances thereunto belonging to the said John W. Smith and wife, Amanda 0. Smith, and their heirs and assigns, to their only use and behoof forever.”

John W. Smith died 6 December, 1923. It appeared in evidence that in February, 1924, the executors and trustees under the will of John W. *630Smith instituted action asking the advice of the court as to their duty with respect to the real property of which John W. Smith died seized. Amanda C. Smith was made party to this action and filed no answer. Judgment was rendered as prayed. In August, 1924, Amanda C. Smith, who had dissented from the will, filed petition for the allotment of her dower as widow of John W. Smith in the lands of which he died seized. She alleged that he was owner in fee of several parcels of real property, which she described, including the lot now claimed by the plaintiff. The executors and heirs of John W. Smith were made parties. Judgment was rendered according to her petition, and the dower allotted to her included the lot in question. The dower allotment was duly confirmed by the decree of the court.

In March, 1925, in the action instituted February, 1924, hereinbefore referred to, motion was made by these defendants, who are the heirs of John W. Smith, for the discharge of the executors and trustees under the will of John "W". Smith and for the conveyance to the defendants of the real property of John W. Smith. Amanda 0. Smith was served with notice of the motion and filed answer admitting that she had taken dower in the lands of John W. Smith. Judgment was rendered in accordance with defendants’ motion, and the executors and trustees were directed to convey to the defendants all the real property of John W. Smith, subject to the dower interest therein of Amanda C. Smith. Deed was executed as directed.

In 1929, Amanda C. Smith instituted action against these defendants, alleging that she was life tenant in the real property allotted to her as dower, and asking that defendants, remaindermen, be required to compensate her for improvements put on this property. She also asked for a sale of the lands. Defendants’ demurrer was overruled and defendants appealed to the Supreme Court. The Supreme Court held she was not entitled to recover for improvements, as they were voluntarily made “and she knew she had only a life estate,” but held she could maintain action for sale of the property for reinvestment, upon proper showing. Smith v. Suitt, 199 N. 0., 5, 153 S. E., 602. Subsequently Amanda C. Smith took a nonsuit in that action.

Amanda C. Smith died 5 March, 1939. In November, 1939, plaintiff, executor of her last will and testament, instituted this action claiming that she had acquired title in fee to this lot by survivorship, under the Ross deed. Defendants denied that Amanda C. Smith took any title under this deed, except right of dower, and further alleged that Amanda C. Smith and her executor were estopped by the judgments referred to.

Judgment of nonsuit was entered by the trial judge, who based his ruling upon both grounds "set up in the answer.

Plaintiff appealed:

*631 Marshall T. Spears and John D. McConnell for plaintiff, appellant.

Basil M. WatTcins for defendants, appellees.

DeviN, J.

Tbe court below ruled that plaintiffs action to establish title to the lot in question could not be maintained for two reasons, (1) because the deed to J'ohn W. Smith, upon which plaintiff based his claim, did not create an estate by the entireties so as to vest the title in Amanda C. Smith, the survivor, and (2) because in any event Amanda C. Smith was estopped by judgment from claiming title in fee. Plaintiff’s appeal challenges the correctness of the court’s ruling on both grounds.

1. The characteristics of an estate by the entireties were defined by Blackstone as follows: “If an estate in fee be given to a man and his wife they are neither properly joint tenants nor tenants in common; for the husband and wife being considered one person in law they cannot take the estate by moieties, but both are seized of the entirety per tout et non per my, the consequence of which is that neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain in the survivor.” 2 Bl., 182. The incidents of this anomalous estate were discussed by Walker, J., in Moore v. Trust Co., 178 N. C., 118, 100 S. E., 269.

Did the Ross deed create an estate by the entireties in John W. Smith and Amanda 0. Smith, his wife ? The premises and the conveying clause of the deed designate the grantee as John W-. Smith. The payment of the consideration by John W. Smith is acknowledged, and the conveyance is to John ~W. Smith and his heirs. In the habendum clause these words appear, “to the said John W. Smith' and wife, Amanda C. Smith, and their heirs.”

It may be observed that the technical rules anciently devised for the construction of the several parts of a deed are not to be strictly applied if to do so would defeat the obvious intention of the grantor. The principle is also established that for the purpose of ascertaining the intent of the maker all parts of the deed should be considered, but in doing so recognized canons of construction and settled rules of law may not be disregarded. Boyd v. Campbell, 192 N. C., 398, 135 S. E., 121; Heyer v. Bulluck, 210 N. C., 321, 186 S. E., 356; Williamson v. Cox, 218 N. C., 177, 10 S. E. (2d), 662.

It was said by Adams, J., in Benton v. Lumber Co., 195 N. C., 363, 142 S. E., 229, that the entire deed must be considered and such construction of particular clauses adopted as will effectuate the intention of the parties, and that if terms are contradictory the first in order will be given effect to the exclusion of the last. “As a rule if there are repugnant clauses in a deed the first will control and the last will be rejected.” Boyd v. Campbell, supra; Seawell v. Hall, 185 N. C., 80, 116 S. E., 189; 12 Am. Jur., 566; Wilkins v. Norman, 139 N. C., 40, 51 S. E., 797.

*632Tbe usual office of tbe habendum in a deed is to define tbe extent of tbe ownership in tbe thing granted to be held and enjoyed by tbe grantee (26 C. J. S., 200, 431); to lessen, enlarge, explain, or qualify the estate granted in tbe premises (Seawell v. Hall, supra); but not to contradict or be repugnant to tbe estate granted therein (Bryan v. Eason, 147 N. C., 284, 61 S. E., 71), though tbe habendum clause may control if it clearly appears tbe grantor so intended. Seawell v. Hall, supra; 84 A. L. R., 1050.

Ordinarily tbe habendum clause relates to tbe quantum of tbe estate, while tbe premises and tbe granting clauses designate tbe grantee and tbe thing granted. “Tbe granting clause is tbe very essence of tbe contract,” 16 Am.. Jur., 567. Hence, where tbe name of tbe grantee, tbe thing granted, and tbe quantum of tbe estate are clearly defined in tbe granting clause, tbe habendum clause is not essential to tbe validity of tbe deed, and in case of repugnancy is to be rejected, unless it appears from tbe four corners of tbe deed that it was tbe intention of tbe parties that it should control. 84 A. L. R., 1054; 111 A. L. R., 1078.

In Hafner v. Irwin, 20 N. C., 570, tbe deed construed named one party as grantee, and in tbe habendum another party was named as trustee to effectuate tbe purposes expressed in tbe deed. It was held that tbe naming of a new grantee in tbe habendum could only be upheld “provided tbe estate given by tbe habendum to tbe new grantee was not immediate, but by way of remainder.” It was also said: “But it (tbe habendum) cannot perform tbe office of divesting an estate already vested by tbe deed, for it is void if repugnant to tbe estate granted in tbe premises.” This statement of tbe law was cited and applied in Blackwell v. Blackwell, 124 N. C., 269, 32 S. E., 676. Tbe distinction was stated by Ashe, J., in Blair v. Osborne, 84 N. C., 417, where it was held that one not named in tbe premises may, nevertheless, take an estate in remainder by limitation in tbe habendumj “that tbe habendum shall never introduce one who is a stranger to tbe premises to take as grantee, but be may take by way of remainder.” This language was quoted with approval by Connor, J., in Condor v. Secrest, 149 N. C., 201, 62 S. E., 921.

In Triplett v. Williams, 149 N. C., 394, 63 S. E., 79, it was decided that, in order to effectuate tbe intention of thé grantor, tbe qualification or lessening of tbe estate by provisions in tbe habendum limiting it to a life estate, with remainder over to tbe children of tbe grantee, should be upheld. And in Acker v. Pridgen, 158 N. C., 337, 74 S. E., 335, it was said: “While a stranger to a deed cannot be introduced in tbe habendum clause to take as grantee, be can take in remainder by way of limitation when by construction of tbe entire instrument it appears that tbe intention of tbe parties is given effect.” That a new party may be *633named as grantee in tbe habendum wbo may take by way of limitation bas been declared in numerous decisions. Jones v. Whichard, 163 N. C., 241, 79 S. E., 503; Brown v. Brown, 168 N. C., 4, 84 S. E., 25; Williams v. Williams, 175 N. C., 160, 95 S. E., 157; Johnson v. Lee, 187 N. C., 753, 122 S. E., 839; Lee v. Barefoot, 196 N. C., 107, 144 S. E., 547. But that is not tbe question bere. By tbe Ross deed Jobn W. Smith was alone designated as grantee in tbe premises and in tbe conveying clause. In tbe habendum an additional person “a stranger to tbe premises” was for tbe first time introduced, not to take by way of remainder, but as an original grantee of a present interest.

While tbe undoubted trend of modern adjudication is to discard tbe artificial importance given certain clauses in deeds, and to adhere to tbe cardinal principle that a deed must be construed in its entirety in order to ascertain tbe intention of tbe parties (Jefferson v. Jefferson, 219 N. C., 333, 13 S. E. (2d), 745; Midgett v. Meekins, 160 N. C., 42, 75 S. E., 728; Triplett v. Williams, supra), tbe particular rule of construction applied in tbe cases cited bas not been abrogated or modified so as to permit tbe interpretation which tbe plaintiff seeks to place upon tbe deed under which be claims.

From an examination of tbe several parts of tbe Ross deed, and consideration of tbe manner and form in which tbe conveyance was expressed, we are unable to find that it was tbe intention of tbe parties that an estate by tbe entireties should be thereby created. There was no evidence of mutual mistake, or mistake of tbe draftsman in drawing tbe deed under which plaintiff claims, nor was there allegation of other equitable ground upon which tbe action could be maintained.

Tbe plaintiff cites Midgett v. Brooks, 34 N. C., 145. Tbe point decided there was whether a covenant appearing only in tbe habendum clause should be given effect. It was held that while tbe words of covenant were out of place they should be given their legal effect, and tbe court said: “It is tbe office of tbe premises to specify tbe parties to tbe deed and tbe thing created; if, however, tbe name of tbe grantee appears for tbe first time in tbe habendum, it is sufficient.” Tbe correctness of tbe bolding in that case is not controverted, but it is not to be held controlling in a case where tbe grantee is named in tbe premises and in tbe conveying clause, and a different grantee is introduced in tbe habendum.

Tbe plaintiff cites, also,- McLeod v. Tarrant, 39 S. C., 271, 17 S. E., 773. In that case tbe deed in tbe premises named tbe husband as grantee but without words of inheritance, and in the habendum and again in tbe warranty clause tbe husband and bis wife and their heirs were named. It was held that tbe premises gave tbe husband only a life estate, but that through tbe habendum and warranty clauses an estate in fee was *634conveyed to the husband and wife, creating an estate by the entireties. It may he interesting to note that Chief Justice McIver dissented, and in his opinion cited Blair v. Osborne, 84 N. C., 417, and quoted therefrom the sentence, “The habendum, in a deed shall never introduce one who is a stranger to the premises to take as grantee, but he may take by way of remainder.”

2. The defendants’ second line of defense seems equally unassailable. The question of plaintiff’s title to the lot described has become res judi-cata. He is estopped by the judgments set out in the record, which have been duly pleaded. Amanda C. Smith, plaintiff’s testatrix, following the death of her husband, instituted proceeding for the allotment of dower in the lands of which he. died seized. In her petition she described the parcels of real property of which he was owner in fee simple, including the very lot in question, and asked that her dower be allotted therefrom. These defendants, the only heirs at law, and the executors of John W. Smith, were made parties.' The cause proceeded to judgment and her dower was assigned as prayed. Together, with several other parcels of real property, the lot in question was allotted to her as dower. The allotment was confirmed by proper decree, and Amanda 0. Smith entered into possession of this lot as part of her dower, and so continued until her death some fifteen years later. The court had jurisdiction of the parties and of the subject matter. Its decree, rendered on the merits, was binding upon her and her successor in title. Her right of dower in the lot depended upon the title of John W. Smith which was adjudicated in that proceeding. It is fundamental that a final judgment, rendered on the merits, by a court of competent jurisdiction, is conclusive of rights, questions and facts in issue, as to parties and privies, in all other actions involving the same matter. 30 Am. Jur., 908; 34 C. J., 742; Gay v. Stancell, 76 N. C., 369; Bruton v. Light Co., 217 N. C., 1, 6 S. E. (2d), 822; Jefferson v. Sales Corp., ante, 76; Harshaw v. Harshaw, ante, 145; Current v. Webb, ante, 425.

It is well settled that the doctrine of res judicata is applicable to a proceeding under the statute for the allotment of dower. Gay v. Stancell, supra; Stocks v. Stocks, 179 N. C., 285, 102 S. E., 306. As the right of dower depended on the title of the husband, the judgment was conclusive between the parties, and the widow is estopped from setting up title to herself in land embraced in the proceeding and allotted to her as dower. Sigmon v. Hawn, 86 N. C., 310; Boyd v. Redd, 118 N. C., 680, 24 S. E., 356.

The record in this case shows there were other actions and proceedings between Amanda C. Smith and the heirs and personal representatives of John W. Smith relative to the lands of which he died seized, including the lot in question, wherein the title of the defendants, his heirs, was *635admitted or was not denied. It may not be out of place to observe tbat while Amanda 0. Smith took dower in the lot in question, and made no other claim during her lifetime, presumably the plaintiff in the exercise of his trust relationship as executor, upon examination of the Eoss deed, deemed it his duty to obtain judicial determination of the question raised by the language of that instrument.

For the reasons herein fully set out, we conclude that the trial judge has ruled correctly, and that the judgment of the Superior Court must be

Affirmed.