Parrish v. Hodges

• Court: North Carolina Supreme Court
• Writing for the Court: HOKE, J.
• Citation: Parrish v. Hodges, 178 N.C. 133, 100 S.e. 256 (N.C. 1919)
• Decision Date: 01 October 1919
• Docket Number: 107.
• Parties: PARRISH ET UX. v. HODGES.

100 S.E. 256

178 N.C. 133

PARRISH ET UX. v. HODGES.

No. 107.

Supreme Court of North Carolina

October 1, 1919

Appeal from Superior Court, Harnett County; Kerr, Judge.

Controversy without action by M. B. Parrish and his wife, Minnie V Parrish, against M. F. Hodges. From judgment for plaintiffs defendant appeals. Affirmed.

The controversy involved the right of plaintiffs to collect the purchase money for a piece of land sold by plaintiffs to defendant, which the parties agreed should depend on whether plaintiff's deed conveyed a good title.

G. A Martin, of Chapel Hill, for appellant.

James D. Parker, of Smithfield, for appellees.

HOKE J.

The facts affecting the validity of the title offered are as follows:

"The land in question was owned by J. A. Norris, and on June 4, 1901, said J. A. Norris and wife, Z. A. Norris, conveyed the same, reserving a life estate, to Hattie I. Norris (now Wade) habendum and warranty as follows: 'To have and to hold the aforesaid tract of land to Hattie I. Norris and heirs of her body or issue to their only use and behoof forever. And the said James A. Norris and wife Z. A. Norris covenant with said Hattie I. Norris, heirs of her body, that they are seized of said lands in fee simple; that the same are free and clear from all incumbrances and that they will warrant and defend the title to same against the claims of all persons whatsoever."' That on November 25, 1912, the life tenants, James A. and Z. A. Norris, his wife, and also Hattie I. Wade, executed a deed in fee for said land to plaintiffs.

It thus appears that the question in controversy depends on the estate conveyed to Hattie I. Norris by the deed from J. A. Norris and wife, and on the facts presented we concur in the ruling of his honor that the deed conveyed an estate of absolute ownership in remainder. And the life tenants and Hattie I. and her husband, James, having joined in the deed conveying the land in fee to plaintiffs, the title offered is a good one, and defendant must comply with the contract of purchase.

Under our statute converting estates tail into estates in fee simple (Revisal,§ 1578), this habendum to Hattie I. Norris, "to have and to hold the aforesaid tract of land and all privileges and appurtenances thereto belonging, to her and the heirs of her body or issue to their only use and behoof forever," created an estate in fee, it being clear that the words "or issue" were intended as synonymous with "heirs of the body," and to have the same significance as to the character of the estate conveyed. Revis v. Murphy, 172 N.C. 579, 90 S.E. 573; O'Neal v. Borders, 170 N.C. 483, 87 S.E. 340; Perrett v. Bird, 152 N.C. 220, 67 S.E. 501 and cases cited. This appears, not only from the language of the habendum, indicating that an estate of inheritance was intended for Hattie, but the interpretation is emphasized by the condition of the parties and the warranty clause, showing that an estate of absolute ownership was being presently conveyed, and Hattie, the grantee named, then unmarried and without children, being evidently the only one considered or who was then in a position to take and hold the interest.

In Ford v. McBrayer, 171 N.C. 420, 88 S.E. 736, to which we were referred by counsel in support of defendant's position, it is fully recognized that the word "issue" is not infrequently construed to mean lineal descendants and the equivalent of the "heirs of the body." And while it is said in that case that the courts rather lean to the position that the word should be considered as a word of purchase in the sense of children etc, this was said in reference to an...