Powell v. Morisey
| Decision Date | 31 January 1881 |
| Citation | 84 N.C. 421 |
| Parties | JAMES M. POWELL and others v. JAMES K. MORISEY and others. |
| Court | North Carolina Supreme Court |
OPINION TEXT STARTS HERE
SPECIAL PROCEEDING for partition of land commenced in the probate court and heard at Spring Term, 1880, of SAMPSON Superior Court, before Avery, J.
The plaintiffs appealed from the judgment below.
Mr. D. J. Devane, for plaintiffs .
Messrs. E. T. Boykin, and Reade, Busbee & Busbee, for defendants .
This was a special proceeding begun in the probate court of Sampson county for a sale of lands for the purposes of partition, and which was tranferred to the superior court of that county, for the trial of certain issues raised by the pleadings. It comes to this court upon an appeal of the plaintiffs from a judgment of that court overruling a demurrer which they had interposed to the answer of the defendants; but we have not thought it necessary to elaborate that point, as we are of the opinion that the plaintiffs' case must fail because of an entire failure of title in them to the lands which are the subject of the action.
The facts as set forth in the pleadings are as follows: On the 10th day of April, 1860, James Vann, under whom all parties claim, executed a deed whereby, after reserving to himself a life estate in the lands, he conveyed them to his five grandsons, James Register, Harman Register, Gibson Register, John R. Register and Edmond Register, without the use however of any words of inheritance in the deed, and in 1866 he died leaving a will in which after making several special legacies and devises, he devised the residue of his estate to the plaintiffs who are also his grandchildren.
Of the grandsons mentioned in the deed, three died during the life of the grantor and one since his death, leaving John R. Register alone surviving from whom the defendants, since the death of all his brothers, have purchased.
The plaintiffs insist that the effect of the deed was to give to the grandsons only a life estate in the lands, whereas the defendants say that it was the intention of the grantor to give them a fee simple interest, and that the necessary words of inheritance were omitted through the mistake of the draughtsman, and they ask to have it corrected so as to give effect to such intention.
Of course if there be this mistake and the correction be made, then the plaintiffs cannot maintain their action; nor do we see that their condition will be bettered at all, if we give to the deed the...
To continue reading
Request your trial
-
Burton v. Cahill
...not to be subject to be parted with under no consideration; at their death I give all the above property to their children." In Powell v. Morisey, 84 N.C. 421, which was also partition proceeding, the deed, after reserving a life estate to the grantor, conveyed the property to five grandson......
-
Urton v. Cahill
...by entirety. Vass v. Freeman, 56 N. C. 221, 69 Am. Dec. 734; Powell v. Allen, 75 N. C. 450; Blair v. Osborne, 84 N. C. 417; Powell v. Morisey, 84 N. C. 421. In Powell v. Allen, 75 N. C. 452, Pearson, C. J., says: "When two or more acquire land by purchase, as distinguished from descent, and......
-
Powell v. Morisey
...the case was before this court at January term, 1881, upon appeal of plaintiff, which appeal was dismissed upon the ground there stated. 84 N.C. 421. The counsel for the appellants insists that it should have been remanded by the court below to the clerk of the superior court; that there wa......
-
Blair v. Osborne
... ... Such is the reasonable construction of the act and the interpretation which has been given to it by this court in Powell v. Allen, 75 N. C., 450. The premises of a deed are used to set forth the names of the parties, any recitals of deeds, &c., that may be deemed ... ...