An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-726
                                          &nb sp; 
Filed: 18 March 2003


v .                             Robeson County
                                No. 01-CVS-04360

    Appeal by defendants from order entered 12 April 2002 by Judge Robert F. Floyd, Jr., in Robeson County Superior Court. Heard in the Court of Appeals 17 February 2003.

    J. Gates Harris for plaintiff-appellee.

    Etheridge, Moser, Garner, Bruner and Wansker, P.A., by Terry R. Garner, for defendant-appellants.

    MARTIN, Judge.

    Plaintiff brought this action alleging that defendant had converted rental income to which plaintiff was entitled. In her complaint, plaintiff alleged that on 5 November 1998 she and her late husband, Leon Douglas Bridgers, had executed a deed conveying a life estate in certain farm land to themselves, with a vested remainder in fee simple to defendants, who are Mr. Bridgers' children from a previous marriage. Plaintiff alleged that her husband had died on 3 October 2001, and that she had a life estate in the property. She alleged that on or about 15 October 2001, defendants made demand upon, and received from, the tenant farmrental of $9,700.00. Plaintiff sought compensatory and punitive damages.
    Defendants filed an answer, asserting in a counterclaim that plaintiff and Leon Bridgers had released their life estates to defendants by the execution and delivery of an instrument dated 27 October 2000. A copy of that instrument, recorded on the date of its execution, was attached to the answer. In her reply, plaintiff admitted execution of the 27 October 2000 instrument, but asserted that it was ineffective to release her life estate in the subject property.
    All parties moved for summary judgment. The superior court concluded, from the provisions of the instrument itself and without resort to the circumstances attending its execution, that it was the intent of the plaintiff and Leon, in executing the 27 October 2000 instrument, to convey to defendants only their interest in standing timber on the property and not to release their life estates. The court entered judgment declaring that plaintiff retains a life estate in the land described in the deed and ordering that defendants pay the farm rentals to her. Defendants appeal.


    Resolution of the present case requires interpretation of the instrument entitled “Nonwarranty/Timber Deed” executed by plaintiff and her late husband on 27 October 2000. G.S. § 39-1.1 states that:
        [i]n construing a conveyance executed after January 1, 1968, in which there areinconsistent clauses, the courts shall determine the effect of the instrument on the basis of the intent of the parties as it appears from all of the provisions of the instrument.

N.C. Gen. Stat. § 39-1.1(a) (2002). The interpretation of the terms of a deed is a question of law for the court. Mason-Reel v. Simpson, 100 N.C. App. 651, 397 S.E.2d 755 (1990). Only if the intent of the parties cannot be determined from the language of the deed should the court consider the circumstances surrounding its execution. Id.
    The pertinent language of the 27 October 2000 instrument granted to defendants:
        [plaintiff and Mr. Bridgers'] share of all timber of any size being situated on the tracts or parcels of land lying and being in Rowland Township, Robeson County, North Carolina, and being described as tax parcels 1908 02 011, 1911 01 011, and 3701 01 007.

        The purpose of this deed is to release the life estate of the grantors to the grantees in the above described parcels of property as established in the deed recorded in Book 1029, page 272 of the Robeson County Registry.

The deed to which the above clause refers is the 5 November 1998 deed by which plaintiff and Mr. Bridgers conveyed to themselves a life estate in certain parcels of farm property, with a vested remainder in fee simple to defendants.
    Although defendants agree with the superior court's determination that it could ascertain the intent of the grantors from the deed's provisions without resort to a consideration of the circumstances surrounding its execution, they assert the court's conclusion as to such intent was incorrect. Defendants acknowledgethat the deed is “internally inconsistent” because, in the first paragraph at issue, it grants rights to the timber on the disputed property, but provides, in the next paragraph, for a release of the grantors' life estates in the property on which the timber stands. Nevertheless, they contend, the clear and unambiguous language of the deed shows the grantors' intent to release their life estates in the property. Citing Strickland v. Jackson, 259 N.C. 81, 130 S.E.2d 22 (1963), they assert that the superior court was required to interpret the deed in accordance with such clearly expressed intent.
    Considering all the provisions of the deed, we must agree with the interpretation given them by the superior court. The instrument was entitled “Nonwarranty/Timber Deed.” The language is clear and unambiguous that plaintiff and her husband, the grantors, intended to release their life estates only with respect to the timber on the disputed farm land, not to the land itself. Indeed, had the grantors intended to release their life estates in the farm land altogether, there would have been no reason for the deed to mention or convey the timber standing on that land separately.
    Chief Judge EAGLES and Judge GEER concur.
    Report per Rule 30(e).

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