Pugh v. Allen

• Decision Date: 10 March 1920
• Docket Number: 218.
• Citation: Pugh v. Allen, 179 N.C. 307, 102 S.E. 394 (N.C. 1920)
• Parties: PUGH v. ALLEN.
• Court: North Carolina Supreme Court

102 S.E. 394

179 N.C. 307

PUGH v. ALLEN.

No. 218.

Supreme Court of North Carolina

March 10, 1920

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

Controversy without action by James H. Pugh against Frank Allen. Judgment for defendant, and plaintiff excepts and appeals. No error.

Where deed conveyed the estate in fee and recited as part of the consideration that in case grantee "should die without an heir" the title should revert to the sole use and benefit of the grantor's son, the limitation was not repugnant to the granting clause, but was a mere qualification thereof, and the fee conveyed was a fee defeasible and not a fee simple absolute, since the word "heir," as used, means issue and not heirs generally, so that upon grantee's death without children the estate would pass to the son's children, not under grantee, but as heirs of the son under the deed from the grantor.

From the facts submitted, it appears that plaintiff has contracted to sell and convey to defendant a tract of land in said county, and defendant has refused compliance, alleging that plaintiff cannot make a good title; that the land belonged to Francis Pugh, who conveyed same to plaintiff, one of his sons; that Francis Pugh died, leaving four children, James H., Thomas K., Mary M., and Carrie M. Pugh. Mary M. Pugh intermarried with A. J. Fordham, and she and her husband are both dead without children; that Carrie M. intermarried with J. F. Wooten, and is now a widow with two living children that Thomas K. has died without children and without having married; that James H., the grantor in the deed, is a very old man and has never married. The court, being of opinion that, under the deed from his father and the attendant facts plaintiff only had a defeasible fee in the land, entered judgment for defendant, and plaintiff excepted and appealed.

Kerr & Herring, of Clinton, for appellant.

Butler & Herring, of Clinton, for appellee.

HOKE J.

The validity of the title offered depends upon the proper interpretation of the deed from Francis Pugh to his son James H., the plaintiff, in terms as follows, omitting irrelevant matter:

"That the said Francis Pugh for and in consideration of the natural love and affection which he has unto the said James H. Pugh, and for the further consideration of the sum of one dollar to me in hand paid, the receipt whereof is hereby acknowledged, and for the further consideration that the said James H. Pugh does at or before the signing and delivery of these presents release unto my son Thomas K Pugh all of his interest in the place whereon I now reside given by Wm. Kirby, deceased, in his last will and testament to my wife, Mary Ann Pugh and to the heirs of her body, and for the further consideration that in case it shall become necessary I reserve the right to draw from said lands such portion of the crops as I the said Francis Pugh shall deem sufficient for my sustenance. And for the further consideration that in case the said James H. Pugh, should die without an heir the following gift shall revert to the sole use and benefit of my son, Thomas K. Pugh, his heirs and assigns. I the said Francis Pugh have given, granted, aliened, released and confirmed and by these presents do give, grant, alien, release and confirm unto the said James H. Pugh, his heirs and assigns, all of that tract or parcel of land situated on the west side of the Six Runs, known as the Needham Stevens place and bounded as follows. * * * Together with all the privileges and all things appurtenant thereto and all the estate, rights, title, interest, except the above named reservations, of him the said Francis Pugh in and thereto.

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