Edwards v. Faulkner

• Court: North Carolina Supreme Court
• Citation: Edwards v. Faulkner, 215 N.C. 586, 2 S.E.2d 703 (N.C. 1939)
• Decision Date: 10 May 1939
• Docket Number: 95.
• Parties: EDWARDS et al. v. FAULKNER.

2 S.E.2d 703

215 N.C. 586

EDWARDS et al. v. FAULKNER.

No. 95.

Supreme Court of North Carolina

May 10, 1939

Civil action for specific performance.

The plaintiffs, being under contract to convey a certain tract of land to the defendant, duly executed and tendered deed sufficient in form to convey valid, fee simple title thereto with full covenants of warranty, and demanded payment of the purchase price as agreed. The defendant declined to accept the deed and refused to make payment, contending that the title offered was defective. Whereupon the plaintiffs instituted this action for specific performance.

On the hearing, a jury trial was waived and the case was submitted to the court on facts agreed.

It is stipulated that if in the opinion of the court, under the facts submitted, the plaintiffs are able to convey "a good and indefeasible, fee simple, merchantable title" to the locus in quo, judgment shall be entered for the plaintiffs; otherwise for the defendant.

The court being of opinion that the plaintiffs were not vested with a good and indefeasible, fee-simple, merchantable title to the land described in the contract, entered judgment for the defendant, from which the plaintiffs appeal, assigning error.

Ben H. Neville, of Whitakers, for appellants.

L L. Davenport, of Nashville, for appellee.

STACY Chief Justice.

On the hearing, the title offered was properly made to depend upon the construction of the following clause in the will of Elizabeth Edwards: "Second, I give and devise all my property, personal and real, to my nephew W. C. Edwards for his life time, and to his heirs if he dies without heirs, my property goes to my Bro. R. C. Edwards, and after his death to my nephews children H. T. Edwards, and R. L. Edwards."

The record discloses that W. C. Edwards and R. L. Edwards are sons of R. C. Edwards and nephews of the testatrix; that no person by the name of "H. T. Edwards" is known to the parties as in any way connected with the family; that W. C. Edwards has six living children and one living grandchild, and that R. C. Edwards died after the execution of his sister's will, leaving him surviving four children and four grandchildren.

The question for decision is whether W. C. Edwards takes a fee simple to the lands devised to him in the second item of his aunt's will. The answer depends upon whether the limitations in remainder are so framed as to attract the Rule in Shelley's Case, which obtains in this jurisdiction not only as a rule of law but also as a rule of property, Brown v. Mitchell, 207 N.C. 132, 176 S.E. 258, regardless of the particular intent of the testatrix. Allen v. Hewitt, 212 N.C. 367, 193 S.E. 275; Merchants Nat. Bank v. Dortch & Hines, 186 N.C. 510, 120 S.E. 60; Hampton v. Griggs, 184 N.C. 13, 113 S.E. 501, 34 A.L.R. 952. Indeed, the testatrix in the instant case doubtless never heard of the Rule in Shelley's Case, which says, in substance, "that if an estate of freehold be limited to A., with remainder to his heirs, general or special, the remainder, although importing an independent gift to their heirs, as original takers, shall confer the inheritance on A., the ancestor". Martin v. Knowles, 195 N.C. 427, 142 S.E. 313.

The devise in question is to W. C. Edwards "for his life time", and then "to his heirs". Had the will stopped here, a typical case for the operation of the Rule would have been presented, for, as said by Black, J., in Steacy v. Rice, 27 Pa. 75, 65 Am.Dec. 447; "the law will not treat that as an estate for life which is essentially an estate of inheritance, nor permit any one to take in the character of heir unless he takes also in the quality of heir." Rowland v. B. & L. Asso., 211 N.C. 456, 190 S.E. 719.

However, immediately thereafter the testatrix adds, "if he dies without heirs, my property goes to my Bro. R. C. Edwards and after his death to my nephew's children H. T. Edwards and R. L. Edwards." The brother of the testatrix, R. C. Edwards, is the father of W. C. Edwards, and, therefore, potentially among the heirs general of the first taker. Hence, according to a number of decisions this would seem to take the case out of the operation of the Rule in Shelley's Case, and assign it to that class of cases of which the following may be said to be fairly illustrative: Rollins v. Keel, 115 N.C. 68, 20 S.E. 209; Puckett v. Morgan, 158 N.C. 344, 74 S.E. 15; Jones v. Whichard, 163 N.C. 241, 79 S.E. 503; Pugh v. Allen, 179 N.C. 307, 102 S.E. 394; Blackledge v. Simmons, 180 N.C. 535, 105 S.E. 202; Wallace v. Wallace, 181 N.C. 158, 106 S.E. 501; Reid v. Neal, 182 N.C. 192, 108 S.E. 769; Hampton v. Griggs, supra; Welch v. Gibson, 193 N.C. 684, 138 S.E. 25; Doggett v. Vaughan, 199 N.C. 424, 154 S.E. 660; Brown v. Mitchell, supra; Gurganus v. Bullock, 210 N.C. 670, 188 S.E. 85.

The distinction between this line of cases, in which it is held that the Rule is not attracted by the limitations appearing therein, and the long line of decisions holding it to be applicable and firmly established as the law of this jurisdiction, was first pointed out in Pugh v. Allen, supra and repeated in Hampton v. Griggs, supra; Welch v. Gibson, supra; Doggett v. Vaughan, supra; Brown v. Mitchell, supra, substantially as follows: Where there is an ulterior limitation which provides that upon the happening of a given contingency, the estate is to be taken out...