Fuleright Et Ux v. Yoder

• Citation: 113 N.C. 456,18 S.E. 713
• Court: United States State Supreme Court of North Carolina
• Decision Date: 19 December 1893
• Parties: FULERIGHT et ux. v. YODER et al.

18 S.E. 713

113 N.C. 456

FULERIGHT et ux.

v.YODER et al.

Supreme Court of North Carolina.

Dec. 19, 1893.

Deed—Construction — Words op Inheritance.

A deed reciting that the grantors "hath sold unto J., in trust for M., all that tract of land, * * * [describing it,] unto the said J., agent, his heirs and assigns, forever. The said [grantors] hath a right to convey the same, and by these presents doth convey the same, in fee simple, unto J., agent, "—gives M. an equitable fee, though words of inheritance are omitted in the limitation. Holmes v. Holmes, 86 N. C. 205, followed.

Appeal from superior court, Catawba county; Boykin, Judge.

Action by Andrew Pulbright and wife against Daniel Yoder and others for partition of land. From a judgment for defendants, plaintiffs appeal. Affirmed.

Defendants claimed the land through a deed to their ancestor Z. T. McCaslin, who was an infant at the time the deed was executed. The deed was as follows: "This deed, made the 12th day of October, 1860, between Matthew McCaslin and wife, Margaret, of the first part, and J. C. McCaslin, agent of Z. T. McCaslin, of the second part, * * * witnesseth, that the said Matthew McCaslin and wife, for and in consideration of one dollar to them in hand paid, and of natural good will and affection, hath bargained and sold unto J. C. McCaslin, in trust for Z. T. McCaslin, all that tract or parcel of land on Potts creek, in Catawba county, [describing it,] containing 83 acres, all woods, ways, waters, and water courses, unto the said J. C. McCaslin, agent, his heirs and assigns, forever. The said M. McCaslin and wife hath a right to convey the same, and by these presents doth convey the same, In fee simple, unto J. C. McCaslin, agent."

C. A. Cilley, for appellants.

D. W. Robinson and M. L. McCorkle, for appellees.

PER CURIAM. The case of Holmes v. Holmes, 86 N. C. 205, is similar to the one before us, and, according to the principles there laid down, Z. T. McCaslin took an equitable fee, although words of inheritance were omitted in the limitation. It is therefore unnecessary to pass upon the sufficiency of the evidence offered for the purpose of correcting the deed. While it must be admitted that the doctrine of the above-mentioned case is not supported by text writers or the previous decisions of this court, yet it is believed to be founded upon more equitable principles in arriving at the real intention of the grantor. It is also in accord with the spirit of recent legislation, (Code, §...