Lawrence v. Pitt

• Court: North Carolina Supreme Court
• Writing for the Court: BATTLE
• Citation: Lawrence v. Pitt, 1 Jones 344, 46 N.C. 344 (N.C. 1854)
• Decision Date: 30 June 1854
• Parties: JAMES LAWRENCE v. FRANKLIN G. PITT.

1 Jones (NC) 344

46 N.C. 344

JAMES LAWRENCE

v.FRANKLIN G. PITT.

Supreme Court of North Carolina.

June Term, 1854.

Where, by the death of her grand-father, (the person last seized,) a child is entitled to a reversion in land, expectant on the termination of a life estate, and such child dies before the expiration of the life estate: HELD, that the inheritance does not vest for life in the parent of the deceased child, under the 6th Canon of Descents, on the expiration of the life estate. The person entitled to take must make himself heir to the person last seized.

THIS was an action of Ejectment, tried before his Honor Judge CALDWELL, at the Spring Term 1854, of Edgecombe Superior Court.

The plaintiff claimed the right to enter upon an undivided fifth part of the tract of land set forth in the declaration, and the following facts are submitted as a case agreed:

“Noah Little died intestate, in the year 1824, seized of a tract of land, leaving Mary E. Little his widow, and the following children, who were his only heirs at law, to wit: Joseph J. Little, Cullen Little, Wm. G. Little, Elisha Little, Patsy Howard and Amariah Little. At the November Term, 1824, of Edgecombe County Court, the widow, Mary E. Little, filed her petition for dower, in the said land, which was assigned, and she took possessien thereof, and continued in possession until her death in 1852. At August Term, 1826, of said Court, a petition for partition of the land was filed by the heirs, and under it a partition was had, and the share assigned to Amariah Little was covered by the dower of the widow and is the tract of land described in the declaration. Amariah Little died in 1842, intestate, and without issue. Patsey Howard died intestate, before 1842, leaving a child her only heir, by the name of Martha, who intermarried with the lessor of the plaintiff. Martha, the wife of the lessor, died in 1844, leaving a child (Joseph) her only heir--the issue of the marriage between her and the lessor of the plaintiff. Joseph, the child, died intestate and without issue in 1850. The defendant was in adverse possession, at the time of the demise, in the declaration.

If the Court should be of opinion that the plaintiff is entitled to recover, judgment is to be entered in his favor for six-pence and costs, with an order to issue a writ of possession. If the Court should be of opinion that the plaintiff is not entitled to recover, judgment of non-suit is to be entered.”

His Honor being of opinion with the plaintiff, gave judgment accordingly, from which the defendant appealed.

Biggs, for plaintiff .

Howard, for defendant , argued as follows:

The plaintiff claims under the proviso to the 6th Rule, in chapter 38, on Descents, of the Revised Statutes. The wording of the Statute is, “that in all cases where the person last seized shall have left no issue, nor brother, nor sister, nor the issue of such, the inheritance shall vest for life only in the parents of the intestate, or in either of them,” &c. It is admitted by the defendant, that the child of the plaintiff died, leaving no brothers, sisters or issue, and the only question is, whether reversions are within the purview of the statute, or whether the child had such seizin as will support the plaintiff's claim. The word “seized” is a “word which is well ascertained at common law,” and it has been decided by this Court in KITCHEN v. TYSON, 3 Murphy, 314, that when such is the case, it must “be understood in the statute in the same sense in which it is understood at common law.” The certainty and security attained by this mode of construction, was judicially considered and approved in ROBERTS v. CANNON, 4 Dev. and Bat. 256. And in 1 Jones 84, RIVES v. GUTHRIE, the Court say, that “we are bound to give to words, when used in a statute, the meaning attached to them at common law.” What, then, is the common law meaning of the word “seized.”

Seizin was of two kinds, “actual and legal.” Actual, when the possession was held either by the party himself or his tenant for years; and legal, when he had a present right of entry, either by deed or descent, without having taken possession. There is certainly no actual seizin. The plaintiff must, therefore, contend that the words “actual and legal,” used in Rule 1, extends through the canons of descent, and entirely changes the common law; and that, by a construction, suited to our condition and circumstances, the plaintiff's child had legal seizin, within the intendment of the Legislature. By the common law, “a person can only be said to be entitled to, not seized of, an estate in reversion.” Cruise, vol. 2, title 17, section 13. At common law, the rule was fully recognized in our Courts, that a widow was entitled to dower in all cases of legal seizin; could she claim dower in this instance? Certainly not. At common law, heirs must make out their title to reversions when the life tenancy falls in. Recognized and confirmed in EXUM v. DAVIE et al, 1 Murphy 475. The statute certainly deserves no more liberality of construction than other canons of descent--the father, no more favor than any other heir. This rule of law has been clearly and forcibly set forth by Mr. Justice STORY, in COOK v. HAMMOND, 4 Mason 467, 484, 485. After showing that, by certain acts, such seizin might be gained as to create a new stock, he says: “But, if no such act be done, and the reversion on remainder continues in a course of devolution, by descent, the heir of the first donee or purchaser will be entitled to the whole as his inheritance, although he may be a stranger to all the mesne reversioners and remainder-men, through whom it was devolved.” No act of ownership was exercised.

BATTLE, J.

The facts stated in the case agreed, present the question, whether the reversionary estate in lands in fee simple, after a life estate in the same is to be regulated in its descent by the sixth rule in our canons of inheritance in the same manner as if it were an estate in possession. The solution of this question depends upon the sense in which the word “seized” is used in those canons. This word is a well known term of the common law, signifying the possession or occupation of the soil by a free man or freeholder, one who has at least a life estate in the land, 2 Black. Com. 104. Seizin was of two kinds, seizin in deed, or the actual possession or occupation of the land, and seizin in law, which was a bare right to possess or occupy it. Ibid 127. The difference between the two kinds is thus illustrated: “Where a freehold estate is conveyed to a person by feofment, with livery of seizin, or by any of those conveyances which derive their effect from the statute of uses, he acquires a seizin in deed and a freehold in deed. But where a freehold estate comes to a person by act of law, as by descent, he only acquires a seizin in law; that is, a right to the possession; and his estate is called a freehold in law. For, he must make an actual entry on the land to acquire a seizin, and a freehold in deed.” 1 Cru. Dig., tit. 1, sec. 24; Co. Lit. 266 b. In the English Canons of Inheritance, an actual seizin of land was necessary to constitute a person an ancestor from whom an estate could be derived by descent. A bare right or title to enter or be otherwise seized, would not do. Hence the maxim, seisina facit stipitem. Black. Com. 209; Co. Lit. 15. It is manifest, from this explanation of seizin, that neither actually nor legally could it be had of a remainder or reversion after a life estate. It could not be so had, because the tenant for life was in the present occupation of the land, and there could not be two distinct or separate seizins in the same land, at the same time. Hence arose a peculiarity in the descent of such estates, which is well expressed by Judge STORY, in the case referred to in the argument of the defendant's counsel, of COOK v. HAMMOND, 4 Mason's Rep. 484. “Where the estate descended, is a present estate in fee, no person can inherit it, who cannot, at the time of the descent cast, make himself heir of the person last in the actual seizin thereof. But of estates in expectancy, as reversions and remainders, there can be no actual seizin during the existence of the particular estate of freehold; and, consequently, there cannot be any mesne actual seizin, which of itself shall turn the descent, so as to make any mesne reversioner or remainderman a new stock of descent, whereby his heir, who is not the heir of the person last actually seized of the estate, may inherit. The rule, therefore, as to reversions and remainders, expectant upon estates in freehold is, that unless something is done to intercept the descent, they pass, when the particular estate falls in, to the person who can then make himself heir of the original donor, who was seized in fee, and created the particular estate, or, if it be an estate by purchase, the heir of him who was the first purchaser of such reversion or remainder. It is no matter in how many persons the reversion or remainder may, in the intermediate period,...