Cotten v. Moseley

• Decision Date: 03 April 1912
• Citation: 74 S.E. 454,159 N.C. 1
• Parties: COTTEN v. MOSELEY et al.
• Court: North Carolina Supreme Court

74 S.E. 454

159 N.C. 1

COTTEN v. MOSELEY et al.

Supreme Court of North Carolina

April 3, 1912

Appeal from Superior Court, Pitt County; Whedbee, Judge.

Action by R. R. Cotten against J. M. Moseley and others. From a judgment for defendants, plaintiff appeals. Reversed.

Where the fee was in the wife with a life estate in the husband and both joined in a deed to a third party, held, that the entire estate in fee passed to such party.

This case was heard below upon the following admitted facts: On September 13, 1871, William Gardner, being then the owner in fee of the tract of land in controversy, containing 140 acres, conveyed the same by deed "to Henry C. Gardner and his wife, Martha Jane Gardner, during their natural lives, afterwards to Martha Jane's heirs forever." The said grantees entered into possession of the land on that day, and continued in the possession until January 2, 1886 when they conveyed the land in fee by their deed duly executed to the plaintiff, R. R. Cotten, and he contracted to sell and convey the same in fee by deed, good and sufficient for the purpose to the defendants J. M. Moseley and W. B. Wooten. Plaintiff tendered a deed to them for the premises, and they declined to accept it and pay the purchase money, because the title is defective, as by the terms of the deed of William Gardner to Henry C. and his wife, Martha Jane, they acquired only a life estate, with remainder to the heirs of Martha Jane, who, it is alleged, take by purchase, and not by descent, and that the said heirs now claim the land accordingly, subject to the life estate of Henry C. Gardner, who is now living, his wife the said Martha Jane, being dead. The heirs of Martha Jane Gardner are defendants in the case. The court held, and so adjudged, that the deed of William Gardner to Martha Jane Gardner did not convey the fee, but only a life estate, and therefore the plaintiff's deed will not convey a fee-simple estate to Moseley and Wooten. Plaintiff appealed.

F. G. James & Son and Aycock & Winston, for appellant.

W. A. Finch and C. C. Pierce, for appellees.

WALKER J. (after stating the facts as above).

The question in the case is whether the limitation of the estate to husband and wife for their natural lives, afterwards to the heirs of the wife forever, is sufficient to pass the fee under the rule in Shelley's Case. The principle embodied in this rule, which, perhaps, was first formally and authoritatively announced by all the judges during the reign of Elizabeth, in the case from which it takes its name (1 Coke, 219), was of far more remote origin, and for many years had been called "an ancient dogma of the common law." The principal and most forceful reasons advanced for adopting the rule were to prevent the abeyance or suspension of the inheritance, and to facilitate the alienation of land, throwing it into the track of commerce one generation sooner, by vesting the inheritance in the ancestor, than if he continued tenant for life and the heir was declared a purchaser. "Therefore," said Justice Blackstone, "where an estate was limited to the ancestor for life, and afterwards (mediately or immediately) to his heirs, who are uncertain till the time of his death, the law considered the ancestor as the first principal of the donor's bounty; and therefore permitted him (who, as it is said, Co. Litt. 22, beareth in his body all his heirs, and who had the only visible and notorious freehold in the land) to sell it, devise it, where the custom would permit, or charge it with his debts and incumbrances. And however narrow and illiberal the original establishment of this rule, or the adhering to it in later times, may have been represented in argument, I own myself of opinion that those constructions of law which tend to facilitate the sale and circulation of property in a free and commercial country, and make it more liable to the debts of the visible owner, who derives a greater credit from that ownership, such constructions, I say, are founded upon principles of public policy altogether as open and as enlarged as those which favor the accumulation of estates in private families by fettering inheritances till the full age of posterity now unborn, and which may not be born for half a century." The rule has also been fiercely assailed by some and mildly criticised by others, as being at war with our free institutions and policy, and as founded upon subtle and artificial reasons and extremely technical considerations. Whether it is an arbitrary rule which is calculated to defeat rather than to execute the intention of the grantor we are not at liberty to inquire, as it has been firmly established in our jurisprudence as a rule of law, which we must enforce whenever applicable.

The question before us is as to the legal effect of the deed of William Gardner to Henry C. and his wife, Martha Jane Gardner. Did it convey the fee to Martha, under the rule in Shelley's Case? We are of the opinion that it did. The defendants contend that the subsequent limitation must be to the heirs of the person who takes the particular estate--that is, in this case, the second limitation should have been to the heirs of both husband and wife, as they were seised of the entirety and did not take by moieties--but such is not the true operation of the rule.

If the limitation had been to the wife for life, remainder to the heirs of the husband and wife, the freehold being in the wife alone, the limitation over would be a contingent remainder and their heirs would take as purchasers, because the heirs of the husband would not necessarily be the heirs of the wife. 2 Washburn on Real Property (5th Ed.) p. 649; Robinson v. Wharey, 3 Wilson, 125. As Fearne (page 38) says: "Every person may so far be supposed to carry his own heirs in himself during his life, as that a limitation to them where he takes a preceding freehold may vest in himself; yet no person can be supposed to include in himself the heirs of himself and of somebody else." Coke (section 26) refers to this passage from Littleton; "It tenements be given to a man and to his wife, and to the heirs of the bodie of the man, in this case the husband hath an estate in general taile, and the wife but an estate for terme of life. If lands be given to the husband and wife, and to the heires of the husband which he shall beget on the body of his wife, in this case the husband hath an estate in special taile, and the wife but an estate for life. If the gift be made to the husband and to his wife, and to the heires of the body of the wife by the husband begotten, there the wife hath an estate in special taile, and the husband but for terme of life. But if lands be given to the husband and the wife, and to the heires which the husband shall beget on the body of the wife, in this case both of them have an estate taile, because this word (heires) is not limited to the one more than to the other." Commenting upon this passage, Coke says: "This word [heires] is nomen operativum. To which of the donees it is limited, it createth the estate taile; but if it incline no more to the one than to the other, then both doe take, as here Littleton putteth the case." In pleading seisin of such an estate (when the inheritance inclines to the wife), "it shall be alleged that they were seised together and to the heirs of the body of the wife in her right; and not that they were seised of the freehold or fee tall." Coke, § 28, and note 1. And Fearne (page 39) tells us that "the same distinction was relied on" in Repps v. Bonham, Yelverton, 131, "where, upon a feoffment to the use of R. and his wife for their lives, remainder to the use of the first, second and third son of the body of the wife, and afterwards to the heirs of the body of the wife by R. begotten, it was held that the inheritance was only in the wife, because the word 'heirs,' which made the inheritance, was annexed only to the body of the wife; but that, if it had been to the heirs which the husband should beget on the body of the wife, it would have been an estate tail in them both." In the official report of this case it is stated to have been held that R. had an estate for life and his wife an estate tail, and "this was adjudged by all of the court, without any scruple." In a note to that case it is said that, to whichever body the word "heirs" inclines by the limitation, it creates a descendible estate in...