Nichols v. Gladden Et At

• Court: North Carolina Supreme Court
• Writing for the Court: MONTGOMERY
• Citation: Nichols v. Gladden Et At, 23 S.E. 459, 117 N.C. 497 (N.C. 1895)
• Decision Date: 20 December 1895
• Parties: NICHOLS et al. v. GLADDEN et at

23 S.E. 459

117 N.C. 497

NICHOLS et al.

v.GLADDEN et at

Supreme Court of North Carolina.

Dec. 20, 1895.

Deed—Rule in Shelley's Case.

The rule in Shelley's Case applies to a deed to persons named, "to have and to hold the same to their use during the term of their natural lives, and then to their heirs after them."

Appeal from superior court, Cleveland county; Timberlake, Judge.

Action by Martha Nichols and Newman Nichols, her husband, against Rufus C. Gladden and others and B. Blanton and S. J. Green, trading as H. D. Lee & Co., for partition of certain real estate. From a judgment for plaintiffs, defendants appeal. Reversed.

The deed referred to in the opinion is as follows:

"State of Alabama, Benton County. Whereas, I, Joseph Gladden, of the county of Benton and state of Alabama, have two sons living in the county of Cleveland and state of North Carolina, viz. Harvey I. Gladden and Rufus C. Gladden, and, being desirous to secure to them a home and land for their occupation and support during the term of their natural lives, have thought proper and do by these presents give, grant, convey, release, enfeoff, and confirm unto the said Harvey I. and Rufus C. Gladden all that track of land lying and being in the county of Cleveland and state of North Carolina, to wit: Commencing on two Chestnuts, and running thence S., 26 W., 50 poles, to a post oak; thence S., 40 W., 50 poles, to a small black oak; thence S., 51 W., 66 poles, to a stake; thence N. 29 poles, to a stake in the field; thence W. 136 poles, to a small dogwood; thence N. 158 poles, to a pine, rotten down; thence E. 42 poles, to a black oak and hickory; thence N. 76 poles, to a stake; thence E. 86 poles, to a post oak; thence S. 15 poles, to a pine; thence E. 98 poles, to a pine, on the road Wm. Lackey and Jno. M. Patterson's corner; thence to the beginning, —to have and to hold the same to their use during the term of their natural lives, and then to their heirs after them; and for the confirmation of the above I do hereby bind myself, my heirs and assigns, and will warrant and defend the same from myself, my heirs, and from and every person lawfully claiming the same, guarantying in law and equity unto the said Harvey I. and Rufus C. Gladden the right to the free use and occupation of the same during the term of their natural lives; and after their deaths I do hereby give, grant, and convey the land above described unto the heirs of the said Harvey I. and Rufus C. Gladden, their heirs and assigns forever, in fee simple.

As witness my hand and seal, this 11th day of August, 1854.

"Joseph X Gladden."

Webb & Webb, for appellants.

Geo. E. Wilson and W. J. Montgomery, for appellees.

MONTGOMERY, J. It was agreed by the parties in the trial below that, if the rule in Shelley's Case was applicable to the provisions of the deed before the court, judgment should be rendered for the defendants, but that, if the rule was not applicable, then judgment should be entered for the plaintiffs. His honor was of the opinion that the rule did not apply, and gave judgment for the plaintiffs. The defendants appealed from the judgment. The law known as the "Rule in Shelley's Case, " Mr. Fearne, in his work on Remainders, says, was adopted in the reign of Edward II., and had prevailed in England through the years down to the time when he wrote. It is still the law in England. It is the law in North Carolina, although in our own Reports, in the cases of Mills v. Thorne, 95 N. C. 362, Jenkins v. Jenkins, 96 N. C. 254, 2 S. E. 522, Howell v. Knight, 100 N. C. 254, 6 S. E. 721, and other cases, there were doubts expressed by the court as to whether the rule had not been abolished by section 1329 of the Code, which is section 5 of chapter 43 of the Revised Code. But in Starnes v. Hill, 112 N. C. 1, 16 S. E. 1011, that question was put at rest, the court deciding that the rule was in force in this state; Chief Justice Shepherd, in the opinion, construing the meaning of the Code sections, and showing that they did not and were not intended to, affect the rule. Leathers v. Gray, 101 N. C. 162, 7 S. E. 657, and King v. Utley, 85 N. C. 59, referred to the rule as having been in force here before the Code sections referred to. The foundation of the rule rests upon the aversion of the common law to the inheritance being in abeyance; and its adoption facilitated the alienation of land by vesting the inheritance in the ancestor, thereby enabling him to convey the property at once, without the delay attendant upon contingent remainders. A good definition of the rule, and the most general, is as follows: "That when the ancestor, by any gift or conveyance, takes an estate of freehold, and in the same gift or conveyance an estate is limited either mediately or immediately to his heirs, in fee or in tail, that always in such case 'the heirs' are words of limitation of the estate, and not words of purchase." 1 Coke, 104. Difficulties have arisen, however, in applying it to particular cases, because of an inclination on the part of some of the courts to respect more the intention of the makers of instruments as a matter of construction, rather than the rule as one of law. Nevertheless, the courts seem to agree in the general statement that it is a rule of law, and not of construction; that is, if the words "heirs" or "heirs of the body" are used with no explana tion, with no superadded words which to a certainty show that other persons or individuals are meant than the heirs general of the first taker, the rule must apply, inexorably, as one of law, and the intention of the grantor or devisor is not to be considered. It appears, also, to be generally held that the rule does not apply where the grantor or testator (for the rule applies to both deeds and devises) uses in connection with the words "heirs" or "heirs of the body" such explanatory and descriptive words or phrases as make it perfectly clear that the words "heirs" or "heirs of the body" mean and refer to certain particular individuals, answering the description of heirs at the death of the ancestor. To state it in another way: If the words "heirs" or "heirs of the body" stand alone, without such sufficient explanatory words, the law will, even if the grantor or devisor expressly and unequivocally declare his intention that the grantee or devisee...