Brooks v. Griffin

• Decision Date: 03 January 1919
• Docket Number: 235.
• Citation: 97 S.E. 730,177 N.C. 7
• Parties: BROOKS ET AL. v. GRIFFIN.
• Court: North Carolina Supreme Court

97 S.E. 730

177 N.C. 7

BROOKS ET AL. v. GRIFFIN.

No. 235.

Supreme Court of North Carolina

January 3, 1919

Appeal from Superior Court, Lenoir County; Allen, Judge.

Controversy submitted without action by P. W. Brooks and another against J. C. Griffin. Judgment for defendant, and plaintiffs appeal. Reversed.

A will devising certain land to be divided among testator's children with the distinct understanding that the part thereinafter allotted to each should not be sold to any one except the children, "it being my desire that the said land shall descend to my grandchildren," did not confer a defeasible fee; there being no words of defeasance.

This was a controversy submitted without action. The facts agreed are that Benjamin F. Phillips by his will devised his 50-acre tract of land to his nine children to be divided as follows The residence and 2 acres he devised to his son John T. Phillips, and directed that the remaining 48 acres should be divided into eight tracts of 6 acres each to his other children, providing also:

"With the distinct understanding that the parts or parcels hereinafter allotted to each are not to be sold to any one by him, or them, except the right to sell to one of those above named (being his nine children) it being my desire that said land shall descend to my grandchildren."

C. C Dunn, the husband of one of his daughters, named as a devisee in the will, purchased all the interests in said tract except the interest devised to his wife, taking deeds therefor, and he and his wife sold and conveyed the entire tract to the plaintiff P. W. Brooks in fee simple, and later said Brooks conveyed a one-half undivided interest to his coplaintiff, Dawson. Said Brooks and Dawson conveyed the entire tract December 23, 1913, to the defendant J. C. Griffin by a deed in fee simple with warranty, and the said Griffin executed to the vendors seven bonds in the sum of $500 each, three of which he has paid, but declines to pay the other four, alleging that the title to the land is defective. The court adjudged that the children of the devisor took as life tenants only, and that the land under the will goes in remainder to the children of the devisee, the grandchildren of said testator, to take per stirpes each on the death of the father or mother, the life tenant, and entered judgment against the plaintiffs for costs. Appeal by plaintiffs.

Y. T. Ormond, of Kinston, for appellants.

Dawson, Manning & Wallace, of Kinston, for appellee.

CLARK C.J.

The only question presented is the construction of the following devise:

"I give and devise to my children (naming them) my tract of land where I now reside, containing about 50 acres with the distinct understanding that the parts or parcels hereinafter allotted to each is not to be sold to any one by him or them except the right to sell to one of those above named it being my desire that the said land shall descend to my grandchildren."

Then followed the directions for the allotment of the tract of land among the nine children. All these lots have been sold to others than one of the heirs, and thus came into the hands of the plaintiffs, who sold to the defendant, who refuses to pay the deferred notes for the purchase money upon the ground that the plaintiffs' warranty of title is invalid.

The words used do not make the devise to the children a life estate with remainder over, nor do they confer a defeasible fee, as in Whitfield v. Garris, 134 N.C. 24, 45 S.E. 904. There are no words of defeasance, and the devise on its face is in fee simple.

We are further of opinion that the expression of the testator's wish that the land should "descend to his grandchildren" is the expression of his wish only, and not a legal limitation of the devise. But if it were otherwise, it is invalid as a restriction upon alienation.

In Munroe v. Hall, 97 N.C. 207, 1 S.E. 651, it was held that, where land was conveyed with a proviso that the grantees "should not sell or dispose of the land in any way whatever," the proviso was repugnant to the feesimple estate conveyed and was absolutely void.

In Hardy v. Galloway, 111 N.C. 519, 15 S.E. 890, 32 Am. St. Rep. 828, it was held that a provision in a deed that the vendors "retain for themselves and their heirs and assigns the right to repurchase said land when sold" was an illegal restriction upon the right to alienation and void, citing Twitty v. Camp, 62 N.C. 61, which held void a restriction upon a devisee that he should not sell or incumber his land before reaching 35 years of age.

In Pritchard v. Bailey, 113 N.C. 525, 18 S.E. 668, it was held, citing Hardy v. Galloway, supra, that a provision in a deed that the grantee shall not sell the property during her life was contrary to public policy and void.

In Latimer v. Waddell, 119 N.C. 378, 26 S.E. 123, 3 L R. A. (N. S.) 668, the above cases are cited with approval, and the...