Smith v. Brisson

• Decision Date: 28 February 1884
• Citation: 90 N.C. 284
• Court: North Carolina Supreme Court
• Parties: JOSEPH SMITH and wife v. FRANK BRISSON and wife and others.

90 N.C. 284

JOSEPH SMITH and wife

v.FRANK BRISSON and wife and others.

Supreme Court of North Carolina.

February Term, 1884.

EJECTMENT tried at Spring Term, 1883, of

ROBESON Superior Court, before MacRae, J.

The action was tried by the court upon a case agreed and a jury trial waived, except as to the amount of damages.

It was agreed that both the plaintiffs and defendants claim under a deed executed by Rowland Mercer, Sr., to Rowland Mercer, Jr., dated the 30th of August, 1859, the important part of which is as follows: “For and in consideration of the natural love and affection I have for my son, Rowland Mercer, and the further sum of one dollar to him in hand paid, the receipt of which is hereby acknowledged, has given, granted, bargained, sold and conveyed, and do hereby give, grant, bargain, sell and convey to the said Rowland Mercer and the heirs of his body, and if the said Rowland Mercer should have no heirs, the said land shall go to the heirs of my son James A. Mercer, all that tract of land,” described as in the complaint.

It was admitted that Rowland Mercer, Jr., died on the 10th day of November, 1871, without ever having had any children, and that James A. Mercer was living at the date of the said deed executed on the 30th of August, 1859, and had living children at that time, the defendant, Orren Mercer, being one of them. The land in controversy was devised by Rowland Mercer, Jr., to the feme plaintiff, who was then his wife, but has since intermarried with the other plaintiff, Joseph Smith. It was agreed if upon the above state of facts the plaintiffs are entitled to recover, judgment is to be rendered for them; if not, for the defendants.

His Honor being of opinion with the plaintiffs, upon the jury's returning a verdict assessing the plaintiffs' damages, adjudged that they recover the damages so assessed and that a writ of possession issue. From which judgment the defendants appealed.

Messrs. French & Norment, for plaintiffs .

Messrs. Frank McNeill, T. A. McNeill and J. D. Shaw, for defendants .

ASHE, J.

Both parties to this action claim title to the land described in the complaint under the deed executed by Rowland Mercer, Sr., to Rowland Mercer, Jr., on the 30th day of August, 1859.

The plaintiffs contend that the deed conveyed an absolute estate in fee simple in the land to Rowland Mercer, Jr., and by his will the fee simple title to the same was devised to the feme plaintiff.

The defendants, on the other hand, insist that the deed conveyed only a determinable fee to Rowland Mercer, Jr., which terminated by his death without children, and vested an absolute fee simple, by the limitation in said deed, in the children of James A. Mercer.

The deed in question is to be construed as if it read, to the said Rowland Mercer and the heirs of his body, and if the said Rowland Mercer should die not having such heirs living at the time of his death, the said land shall go to the children of my son James A. Mercer.

By the act of 1827, ch. 7 (Bat. Rev., ch. 42, §3), it is provided, “that every contingent limitation in any deed or will made to depend upon the dying of any person without heir or heirs of his body, shall be interpreted a limitation to take effect when such person shall die not having such heir or issue living at the time of his death.” And by the act of 1856 (Bat. Rev., ch. 43, §5), “any limitation by deed, will or other writing to the heirs of a living person, shall be construed to be the children of such person, unless a contrary intention appear by the deed or will.”

The defendants especially relied upon the case of McBee, Ex-parte, 63 N. C., 332, which was a conveyance to W. J. Stowe, “to have and to hold the said land to his heirs, executors and administrators for and during the period of his natural life; at his death to go to the heirs of his body, to them, their heirs and assigns forever. And in default of heirs of his body living at his death, said property to go to L. J. P. and the heirs of her body.” It was held this vested in W. J. Stowe an estate tail, and by the act of 1784 it was changed into a fee simple, and that the limitation over, “and in default of heirs of his body living at his death, to go to L. J. P. and the heirs of her body, was void.”

The only authority relied upon for this decision was Folk v. Whitley, 8 Ired., 133. The decision in that case was made upon the construction of a will in which the testator devised as follows: “I lend to Benjamin Whitley, son of Elizabeth Nobles, all the lands I own in Conehoe Island,” &c., (being the premises in controversy) “during his natural life, and after his death I give the above mentioned land to his heirs, lawfully begotton, to them and their heirs forever; and in case he (the said Benjamin) should die without lawful issue of his body, then I lend the above mentioned land to his brother, Henry Whitley, in manner as aforesaid.”

This will was made in 1791, and it was held, Chief-Justice RUFFIN speaking for the court, that the words used in the will, “heirs lawfully begotten,” were words of limitation and not of purchase, and that Benjamin Whitley took an estate tail by the application of the rule in Shelly's case, which was converted into a fee simple under the act of 1784, and that the limitation over was void.”

It is always with great reluctance we find ourselves constrained to differ with our brethren who preceded us on the bench, but in the case of McBee we are forced to the conclusion that they overlooked the true ground upon which the case of Folk v. Whitley was decided. It was not because a fee simple was...