Powell v. Allen

• Decision Date: 30 June 1876
• Citation: 75 N.C. 450
• Court: North Carolina Supreme Court
• Parties: JOSEPH D. POWELL v. MARY M. ALLEN, RICHARD S. TERRELL and others.

75 N.C. 450

JOSEPH D. POWELL

v.MARY M. ALLEN, RICHARD S. TERRELL and others.

Supreme Court of North Carolina.

June Term, 1876.

The act of 1784, abolishing the jus accrescendi in joint estates, for the benefit of the heir, &c., of the deceased joint tenants, does not apply to joint tenants for life.

Therefore, where a testator, after giving land to his daughter for life, devised in respect to it as follows: “at her death my executor is to put in possession of my three grandsons, Joseph, Richard and David, for them to use it during their natural lives, for it is not to be subject to be parted with under no consideration, and at their death, give it to their children in fee:” Held, that, Joseph and David having died without issue, Richard had a life estate in the whole of the land; and that at his death, without children, it will revert to the heirs at law of the testator.

Proceedings for PARTITION of land, in WAKE Superior Court, commenced by summons, returnable out of term, and heard upon demurrer to the complaint, by WATTS, J., at June Term, 1876.

The complaint, filed at the opening of the summons, alleges, that Joseph Fowler died in said county in February, 1859, leaving a will by which he devised the land, of which partition is sought, as follows:

“Item 3d. To my beloved daughter, Martha E. Terrell, (widow) I lend, during her life time, my tract of land on which she now resides, in Wake County, containing 500 acres more or less, together with all improvements thereon, and the following negro slaves. * * *

Item 8th. My negroes and all the land that I have loaned my daughter, Martha E. Terrell, at my death, my executor is to put in possession of my three grandsons, to-wit: Joseph E. Terrell, Richard Terrell, and David S. Terrell, for them to use during their natural lives, for it not to be subject to be parted with under no consideration; at their death I give all the above property to their children;”

That the only heirs-at-law of Joseph Fowler, at his death, were the plaintiff, a son and only child of Eliza Powell, a daughter of said Joseph, who died before him, and the said Martha E. Terrell, another daughter; that Martha E. Terrell died in the year 1863; that Joseph, David and Richard Terrell were the children of Martha, and all alive at their grandfather's death, but that Joseph and David died before their mother, unmarried and without issue; that the defendant, Richard, is an idiot and unmarried; that the plaintiff has an estate of inheritance in said land, in possession of one undivided third part, the defendants, who are the issue of Martha E. Terrell, have a like one-third interest, and the defendant, Richard Terrell, has an estate for life, of one undivided third interest, of which, upon his death without children, the reversion belongs equally to the plaintiff, one undivided half, and to the defendants, the issue of Martha E. Powell, the other undivided half.

The complaint asks judgment for an accounting and partition of the land according to the rights of the parties, or if a partition cannot be had without injury to their rights, for a sale, &c.

The defendants demurred to the complaint on the ground that it appeared on its face that the defendant, Richard Terrell, is seized of a vested estate in possession in the whole of the land, &c.

Other points were raised by the pleadings, but the above statement contains all that is necessary to understand the point upon which the case was decided by this Court. Upon argument, his Honor overruled the demurrer and the defendants appealed.

Moore & Gatling and Haywood, for plaintiffs .

Battle & Mordecai and Pace, for defendants .

PEARSON, C. J.

When two or more acquire land by purchase, as distinguished from descent, and the four unities exist, to wit, “time, title, estate and possession,” they take as joint tenants unless there be...