Pritchard v. Bailey
| Decision Date | 19 December 1893 |
| Citation | 18 S.E. 668,113 N.C. 521 |
| Parties | PRITCHARD v. BAILEY. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Buncombe county; J. F. Graves, Judge.
Action by J. C. Pritchard against J. M. Bailey for purchase money due for land sold by plaintiff as trustee under a deed of trust from S.D. Chambers and Sarah M. Chambers, his wife. From a judgment for plaintiff, defendant appeals. Affirmed.
The land in question, before execution of the deed of trust, had been conveyed by one Daniel Payne to said Sarah M. Chambers by a deed providing as follows: "To have and to hold the aforesaid tract, and all the privileges and appurtenances thereto belonging, to the said Sarah M. Chambers and heirs and assigns, forever, to her only use and behoof, not to be sold during the life of said Sarah M. Chambers; then to belong to her heirs."
Where husband and wife join in a deed of trust in fee of the wife's land to secure their joint indebtedness, the trustee takes a fee simple, though the deed recites that the wife's joinder is only for the purpose of releasing her dower and homestead, the draughtsman having neglected to strike this clause from the printed form, since, as there is no dower or homestead right if such clause is to control there is nothing on which the deed can operate.
Chas A. Webb, for appellee.
The deed from Daniel Payne to Sarah M. Chambers, executed in 1882, conferred upon her an estate in fee simple; and under the doctrine declared in Hardy v. Galloway, 111 N.C 519, 15 S.E. 890, and the authorities therein cited, the provision that she should not sell the property during her life was repugnant to the grant, and in contravention of the principle of public policy which forbids the imposition of unreasonable restrictions upon the right of alienation. The property, not having been conveyed in trust, but directly to Mrs. Chambers, she acquired the legal title; and, as she had the legal capacity to convey with the consent of her husband the only question remaining to be considered is whether the deed from herself and husband did actually convey to the trustee a feesimple estate in the land in controversy. The indebtedness secured in said trust was, so far as we are informed, the joint indebtedness of herself and husband, and the recital shows that the sole object of the conveyance was to secure the payment of the same. The conveyance is in fee, with a warranty that the...
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