Holloway v. Green
| Decision Date | 28 October 1914 |
| Docket Number | 259. |
| Citation | 83 S.E. 243,167 N.C. 91 |
| Parties | HOLLOWAY ET AL. v. GREEN. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Wake County; Whedbee, Judge.
Submission of controversy between Martha D. Holloway and others, as plaintiffs, and D. R. Green, as defendant. Judgment for plaintiffs, and defendant appeals. Affirmed.
Restraints on alienation are void.
This is a controversy without action submitted on the following agreed statement of facts:
(1) On the 18th day of August, 1911, the following deed was executed by F. J. Holloway and wife, Martha D. Holloway, of Wake county, N. C., to John T. Davis and wife, Luella Davis, of the District of Columbia:
North Carolina, Wake County.
This deed made this 18th day of August, 1911, by F. J. Holloway and wife, Martha D. Holloway, of Wake county, North Carolina parties of the first part, to John T. Davis and wife, Luella Davis, of the District of Columbia, parties of the second part, witnesseth that for and in consideration of the sum of ten dollars and other valuable consideration, the receipt of which is hereby acknowledged, the parties of the first part do hereby give, grant, bargain, sell, and convey to the parties of the second part, upon the special limitations contained in the habendum herein, the following described tract of land lying in Neuse River township, Wake county North Carolina: Beginning at southwest corner of schoolhouse lot in corner of W. G. Norwood's land, runs S. 85 1/2 degrees E. 1,045 feet to a stone and iron pipe; thence S. 3 1/2 degrees E. 457 1/2 feet to an iron pipe; thence N. 85 1/2 degrees W. 1,105 feet to pipe in road; thence along road N. 3 degrees E. 457 1/2 feet to the beginning; and contains 11 28/100 acres. Being taken from the lands of the parties of the first part in this location. To have and to hold the said lands, together with all the privileges and appurtenances thereunto belonging unto the said parties of the second part upon the following limitations, to wit: The parties of the first part retain possession of the land for twelve years, provided both of the parties of the first part, or either one of them, live that long, but upon the death of both, the possession is to immediately go to the parties of the second part, and with the further limitation that neither party of the second part shall sell his or her one-half inter est in the said land while the other is living, but that at the death of either, the survivor may dispose of his or her interest in fee, the one-half belonging to the other dying to go to his or her heirs or devisees in fee.
W. W. Vass, trustee, joins in this deed for the purpose of releasing the above-described tract of land from the operation of a deed of trust made to him by the parties of the first part, and recorded in Book 236, page 221, of the register of deeds office of Wake county.
In witness whereof, the said parties of the first part, and the said W. W. Vass, trustee, have hereunto set their hands and seals this the day and year first above named.
[Signed] F. J. Holloway, [Seal.]
[Signed] Martha D. Holloway, [Seal.]
[Signed] W. W. Vass, Trustee. [Seal.]
The acknowledgment of the parties signing was taken in proper form before, and the private examination of Martha D. Holloway by, W. H. Rogers, a notary public, of Wake county, N. C., whose commission was in force at the time. The deed was duly probated before Millard Mial, clerk of the superior court for Wake county, and is properly recorded in the office of the register of deeds of Wake county, in Book 260, at page 14.
(2) F. J. Holloway, one of the parties of the first part to the above recited deed, died on the ______ day of ______, 1914; his wife, Martha D. Holloway, the other party of the first part to the said deed, and one of the parties plaintiff in this cause, surviving him. The parties of the second part to said deed, John T. Davis and wife, Luella Davis, who are also parties in this cause or controversy, without action, are both living, and at present are residing in ______.
(3) The said Martha D. Holloway, wife of said F. J. Holloway, by virtue of the limitations contained in the above-recited deed, is, and has been, since the death of said F. J. Holloway, enjoying the possession of the land described in said deed, and the benefits derived therefrom.
(4) Heretofore--to wit, in the month of ______, 1914-- the plaintiffs, Martha D. Holloway, John T. Davis, and Luella Davis, his wife, entered into an agreement with defendant, D. R. Green, by which said plaintiffs agreed to convey to said defendant the tract or parcel of land described in the above deed, by a fee-simple deed with title freed of all incumbrances, each and all of said plaintiffs agreeing to enter into such a conveyance as granting parties, and to give the usual covenants in such deed, and to give immediate possession of said land to D. R. Green, the grantee; and the said defendant, D. R. Green, in consideration of the plaintiffs' undertaking and agreements, agreed to pay to the plaintiffs, on receipt of a deed to said land executed in accordance with plaintiffs' agreements, the sum of $750, as the purchase price, not then knowing of the existence of the said deed referred to in paragraph 1.
(5) The said plaintiffs, Martha D. Holloway, John T. Davis, and Luella Davis, his wife have properly and in due...
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