Mastin v. Marlow

• Decision Date: 30 June 1871
• Citation: 65 N.C. 695
• Parties: WILLIAM MASTIN et al. v. ELAM MARLOW et al.
• Court: North Carolina Supreme Court

65 N.C. 695

WILLIAM MASTIN et al.

v.ELAM MARLOW et al.

Supreme Court of North Carolina.

June Term, 1871.

After the pleadings are made up and whilst the trial is progressing, it is irregular to move to dismiss the complaint, or Bill in Equity, for defects apparent upon the face of the complaint or Bill in Equity, except where there is a manifest defect of jurisdiction in regard to the subject matter, as distinguished from a want of jurisdiction in respect to the person, or a statement of a defective cause of action, as distinguished from a defective statement of a cause of action.

Where there is no proof of positive fraud or imposition, the contract of an heir expectant to convey what may descend to him by the death of the ancestor, is obligatory upon him, and such contract will be enforced by the Courts.

Where the consideration is fair and adequate and no undue advantage has been taken, the decree is for specific performance, where advantage has been taken of the necessity of the heir expectant, the contract is held as a security for the return of the money actually advanced together with interest.

Where A, an heir expectant of B, executed a deed to C, for “his entire interest in all the personal estate of B, and also his entire interest in all the real estate of B, that he the said A may be entitled to as one of the children and heirs at law of B,” it does not convey such an interest as could be enforced in a Court of Law under the old procedure, but resort must have been made to a Court of Equity.

McDonald v. McDonald, 5 Jones, Eq. 211, cited and approved.

Bill in Equity, heard before Mitchell, J., at Spring Term, 1871, of WILKES Superior Court.

The bill alleges that one James Marlow had, by inquisition, been found to be non compos mentis, and that the defendant, Linda, who intermarried with the defendant, Hilliar Marlow, conveyed by deed, for a valuable consideration, to the complainants, William B. Mastin and William B. Trausaw, all their interest and expectancy as heirs at law of the said James Marlow, in two tracts of land, belonging to him, and particularly described in said deed. That by the said deed of conveyance the said Hilliar Marlow and his wife, Linda, conveyed absolutely to complainants Mastin and Trausaw, in fee simple, their entire interest in and to the said lands of James Marlow, with a covenant of warranty of title to the said complainants, that the private examination of the feme defendant, Linda, was duly taken, and said deed was duly registered; that they also bought the expectancy of the defendant, Elam, also an heir at law of James Marlow, for value, in the lands above described, and received a deed therefor with full covenants of warranty, and paid all the consideration therefor except an inconsiderable amount, which they are ready to pay at any time.

The complainants further allege that since the death of James Marlow, they have repeatedly called on the defendants, Hilliar Marlow and Elam Marlow, and have respectively requested them to perform their agreements towards your orator, specifically, as complainants were advised that some further assurances by deed were necessary, fully and legally, to convey the interest and title of the said Hilliar and Linda, his wife, and the interest of the said Elam Marlow to complainants, according to the several agreements above set forth.

That the said defendants, Hilliar Marlow and wife, Linda, and Elam Marlow, have, since the execution of said deeds to complainants, sold their said respective shares in said lands to Dr. James Calloway, for the same prices respectively that complainants gave for said shares, and they have allowed the said Calloway to enter into possession of said lands; that the said Calloway has subsequently conveyed the whole or greater part of said shares to Phineas Marlow, now dead, who, prior to his death, sold and conveyed the whole or a part of said shares in said lands to the defendant Harrell Hays.

The complainants further allege that they are each entitled to five forty-second parts of said lands, and that the said James Calloway and Phineas Marlow had full notice and knowledge that the said Hilliar and wife, Linda, and the said Elam had agreed and contracted to sell their said interests in said lands, and had respectively executed the said instruments of writing above described to complainants for the same.

The complainants also aver their readiness to perform their agreements respectively, and specifically, in all things remaining to be done, and ask that all necessary accounts be taken of the rents and profits of said lands, & c., and that defendants be required to convey the above described shares of land to complainants.

At Spring Term, 1871, the defendants moved to dismiss the bill, because taking all the facts set forth therein to be true, the complainants were not entitled to the relief prayed for, and that said bill be dismissed on the ground that the plaintiffs' remedy at law was complete.

His Honor being of opinion with the defendants, ordered the bill to be dismissed with costs, and plaintiffs appealed.

W. P. Caldwell, with whom was Armfleld, for complainants .

A father is seized in fee of land. The son, in the life of the father, for a valuable consideration executes and delivers a deed of bargain and sale to the plaintiff, in fee, for his interest in the land, and warrants his interest. The deed is duly proven and registered. The father dies intestate. The son, by deed, conveys to Calloway, with notice of the sale to plaintiff. Can the plaintiff maintain ejectment against Calloway or against his bargainee in possession?

1st. Bargain and sale is a contract to convey the land, and the bargainor becomes a trustee, or is seized to the use of the bargainee. 2 Bl. 273, he must be seized at the time, so that this seizin can instantly pass, and if he is not seized at the time, or has no vested interest, the instrument is void as a conveyance. It is an executory contract.

2d. Upon the descent to the son, does the title pass to the plaintiff, by reason of the estoppel? In Rawlin's case, 4 Coke Rep. 52, it was decided that when A, having nothing in land, demised it by indenture to B for 6 years, and afterwards obtained a term of 21 years, that term was bound by the estoppel, and it was not only a bar to A, but the estoppel passed the estate. And it was decided that a fine levied by a contingent remainderman, or by an heir expectant in the life of the ancestor, bound the estate by the estoppel, upon the happening of the contingency and the descent. Such was also the effect of a common recovery and of a feoffment; they not only concluded the parties, but transferred by estoppel, future estates.

But such was not the effect of grants and releases at common law; and it was early held that the conveyances by bargain and sale, lease and release, and all conveyances operating under the statute of uses, were mere grants, and for a want of the seizin, were governed by the same rule. It has been held in several of the States of the Union, that the estoppel grew out of the warranty usually contained in our conveyances under the statute of uses; and that if a deed had a general warranty, the parties were not only concluded, but subsequently acquired, estates actually passed by estoppel. But that a warranty has no such effect see Smith's Leading Cases, 629-630. Warranty, in a bargain and sale, neither bars the grantor or those claiming under him, upon the subsequent descent of the estate, and the estate does not pass by the estoppel. The editor cites Bivans v. Vanrant, 15 Georgia Rep. 321. He also cites Jacocks v. Gilliam, 3d Mur. 47, and same case Gilliam v. Jacocks, 4 Hawks, 310, which decides that a bargain and sale, with warranty by tenant, in tail, does not make a discontinuance. Taylor, C. J., says that the warranty in a bargain and sale is a personal covenant. To the same effect is cited in Spruill v. Leary, 13 Ire. 255-408, the dissenting opinion of Pearson, J. With or without warranty, a deed of bargain and sale of an estate, not vested in interest at the time the deed is executed, is void at law, but will be enforced in equity, as an executory agreement to convey, and will be rendered effectual by a decree, as soon as the interest intended to be conveyed actually vests. Sm. Ld. C. 641, and authorities...