Hafner v. Irwin

• Decision Date: 31 December 1839
• Citation: 20 N.C. 570
• Court: North Carolina Supreme Court
• Parties: ALFRED HAFNER v. JOHN IRWIN ET AL.

20 N.C. 570

ALFRED HAFNER

v.JOHN IRWIN ET AL.

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM, 1839

Deed—Construction.

1.Where the whole interest in property is conveyed to one person in the premises of a deed, but in the habendum is limited to another, the latter is repugnant to the former and void, and the property is vested in the grantee named in the premises, who may consequently maintain an action for it in his own name.

2.If the name of a grantee appear first in the habendum of a deed it will be good, provided there was not another grantee named in the premises, or if there were, provided the estate given by the habendum to the new grantee was not immediate, but by way of remainder.

THIS was an action of trover, brought by the plaintiff to recover of the defendants damages for the conversion of certain articles mentioned in a deed in trust, executed by one Thomas Dwight.

On the trial at Mecklenburg, on the last circuit, before his Honor, Judge Dick, the deed in trust was produced and proved.It commenced in the following terms: "Know all men by these presents that I, Thomas Dwight, of the county of Mecklenburg, State of North Carolina, of the one part, and Alfred Hafner, of the other part, witnesseth: That the said Thomas Dwight, for and in consideration of ten shillings to him in hand paid, and also in further consideration of the benefit and trust hereinafter mentioned, have bargained and sold, and delivered unto the said Alfred Hafner, his heirs, executors, etc., the following property": And after enumerating many articles, all of personal property, it continued: "To have and to hold, unto the said M. W. Curry, his heirs and assigns forever, in trust and confidence for the purpose now mentioned," etc., and was signed and sealed by the said Dwight and the plaintiff Hafner.

His Honor was of opinion that the plaintiff could not, under this deed, sustain the action in his own name, and he was accordingly nonsuited, and appealed.

DANIEL, J.The authorities cited by the plaintiff's counselshow clearly that the judge erred when he decided the plaintiff could not sustain an action of trover in his own, name to recover the value pf the articles mentioned in the deed, if they were converted by the defendants.Dwight, in the premises of the deed, bargained and sold the property to the plaintiff, his heirs, executors, etc.However, in the same deed, the habendum is to M. W. Curry, his heirs and assigns, in trust, etc.All the parts of a deed which precede...