Smith v. Proctor

• Court: North Carolina Supreme Court
• Writing for the Court: HOKE, J. (after stating the facts).
• Citation: Smith v. Proctor, 139 N.C. 314, 51 S.E. 889 (N.C. 1905)
• Decision Date: 17 October 1905
• Parties: SMITH et al. v. PROCTOR et al.

51 S.E. 889

139 N.C. 314

SMITH et al. v. PROCTOR et al.

Supreme Court of North Carolina

October 17, 1905

Appeal from Superior Court, Nash County; W. R. Allen, Judge.

Action by Mattie Lee Smith and others against Nancy Proctor and others. Judgment for defendants. Plaintiffs appeal. Reversed.

In a deed to S., to hold in trust the land for the benefit of H during his natural life, and, in the event of H. not leaving lawful issue, empowering the trustee to convey to the heirs of H., but, in case of lawful issue of H., then the trustee to make title to the "heirs of H.," H. does not take a fee; the words "heirs of H." being simply a designatio personæe meaning the lawful child or children of H. living at his death.

Civil action heard on case agreed. The facts pertinent to the questions involved are as follows: In 1867 Isaac Sessums being seised and possessed of an undivided tract of land in Nash county, containing 150 acres, undertook to convey same to B. H. Sorsby, Sr., trustee, by two deeds, for the purposes therein set forth; the first deed in the portion material to the controversy being as follows: "This indenture, made and entered into this 2d day of July, 1867, between Isaac Sessums, of the county of Nash and state of North Carolina of one part, and B. H. Sorsby, Sr., trustee, and his survivors, of the second part, witnesseth: That for and in consideration of the sum of one dollar to me in hand paid by the said trustee, the receipt whereof is hereby fully acknowledged, have bargained, sold, and conveyed to the said trustee and his survivors a certain portion of land lying and being in the county of Nash, adjoining the lands formerly belonging to Elias Barrett and others, on both sides of the road leading to Nashville, to contain forty acres, to be taken from the tract where Thursby Griffin now resides, for the following purposes, to wit: That said trustee and his survivors are required to hold in trust for the benefit of Nancy Hunt, during the term of her natural life, and after the death of said Nancy to convey the same to the lawful heirs of Isaac T. Hunt; then to the lawful heirs of Thursby Griffin, wife of Benjamin Griffin. In witness whereof I have hereunto set my hand and seal the day and date above written. Isaac Sessums. [ Seal.] Witness: John H. Sharp." The second deed was as follows: "This indenture, made and entered into the second day of July, 1867, between Isaac Sessums, of the county of Nash and state of North Carolina of the one part, and B. H. Sorsby, Sr., trustee, or his survivors, of the second part, witnesseth: That for and in consideration of the sum of one dollar to me in hand paid by said trustee, the receipt whereof is hereby fully acknowledged, have this day bargained, sold, and conveyed unto him, the said trustee, and his survivors, one certain tract or parcel of land lying and being in Nash county, containing 110 acres, more or less, adjoining the lands of Jordan Brewer, the heirs of Henderson Ellen and others, and known as the place where Thomas Hunt formerly resided, for the following purpose, to wit: That is to say, that the said trustee, or his survivors, shall hold in trust the above tract of land for the benefit of Isaac T. Hunt, during his natural life, and in the event of the said Isaac T. Hunt not leaving lawful issue I hereby empower the said trustee to make *** of the above deeded premises to the heirs of Thursby Griffin, wife of Benjamin Griffin; but, in case of lawful issue of Isaac T. Hunt, then and in that case the said trustee is hereby empowered to make title to the heir of the said Isaac T. Hunt. And also in further consideration of one dollar in hand paid to me by said trustee I have bargained, sold, and conveyed to him one mouse-colored mule for the purposes above stated in regard to the disposition of the land," etc. "In witness whereof I have hereunto set my hand and seal," etc. "Isaac Sessums. [ Seal.] Witness," etc. (3) That in the year 1876 George N. Lewis, sheriff of Nash county, sold said land for taxes due thereon for years 1874, 1875, and 1876, and conveyed same to one John Killibrew, reciting sale for taxes and that owner had failed to redeem, etc. (4) That on the 31st day of January, 1884, said John J. Killibrew conveyed said land by quitclaim deed for valuable consideration to one Isaac Proctor. This deed contained a note saying that the land formerly belonged to Isaac Hunt and was sold by G. N. Lewis for default in payment of taxes on April 3, 1876. (5) That Isaac T. Hunt, referred to in the deeds of Isaac Sessums, died on the 14th day of February, 1903, and plaintiffs are his children and heirs at law, and were born after the year 1884. This suit was instituted by the plaintiffs on the 18th day of August, 1903. (6) That prior to 25 years ago B. H. Sorsby, named as trustee in both deeds from Sessums, died, and no other trustee has been appointed by the court or agreed upon by the parties as to the trusts raised in said deeds. (7) That defendants are the widow and heirs at law of the said Isaac T. Proctor, grantee in the deed from Killibrew; that he died intestate in November, 1894, and defendants and those under whom they claim have been in the exclusive possession of said tract of land, under and ever since the date of the deed from J. A. Killibrew, dated January 1, 1884, claiming it as their own, and exercising the right of ownership over it, etc. On the facts set out in the case agreed the judge below was of opinion that plaintiffs could not recover, gave judgment to that effect, and plaintiffs excepted and appealed.

B. H. Bunn and F. S. Spruill, for appellants.

Battle & Cooley, for appellees.

HOKE J. (after stating the facts).

The two deeds from Isaac Sessums to the trustees were evidently executed with the design and purpose of conveying the entire tract of 150 acres. The case agreed in effect so states. The second deed, however, is sufficiently definite and comprehensive under certain circumstances to embrace the entire tract of land "known as the place where Thomas Hunt formerly resided," giving also the county and adjoining lands. And if, as defendants contend, the first deed, which was made in the effort to cut off 40 acres from the land, is void, because too vague and indefinite in the description to pass any land, then the second would pass the entire tract. The court is of opinion that the position of defendant in regard to the first deed from Isaac Sessums set out in the case agreed is well taken, and the same is void, because too vague and indefinite to pass any land. It purports to cut off 40 acres from the main body of the land, and does not in any way indicate the shape or give any data by which the divisional line can be located. Robeson v. Lewis, 64 N.C. 737; Perry v. Scott, 109 N.C. 379, 380, 14 S.E. 294. The deed is therefore void, and the rights of the parties depend on the true construction of the second deed and the other facts set out in the case agreed.

On this second deed the defendant contends: First, that as same bears date prior to act of 1879 (Code 1883, § 1280) the word "heirs" is absolutely necessary to convey a fee that, said word not being in the deed in connection with the trustee's estate, he only took a life estate; that this life estate terminated by his death 25 years ago, and at his death the land reverted to the grantor or his heirs. It is true that prior to the act of 1879 the word "heirs" was generally held necessary to the creation of a fee-simple estate in deeds conveying the legal title. It was not so in devises, nor in equitable estates, where it was generally held that an estate of inheritance would pass without the word "heirs," if such was the clear intent of the parties. Holmes v. Holmes, 86 N.C. 205-207. A series of decisions have also established the proposition that, whenever the word "heirs" appeared in an instrument as qualifying the interest of the grantee and indicative of his estate, whether in the premises, the habendum, or the warranty, same would be transposed and inserted in that portion of the deed which would cause same to operate as a conveyance of fee-simple interest, when such was the purpose of the grantors. And in Vickers v. Leigh, 104 N.C. 248, 10 S.E. 308, it was decided that in a deed conveying the legal estate, although the word "heirs" did not appear, the deed would be held to convey an estate of inheritance, if the same on its face contained conclusive intrinsic evidence that a fee-simple estate was intended to pass, and that the word "heirs" was omitted from the instrument by ignorance, inadvertence, or mistake. This case has since been uniformly upheld and acted on by this court where the evidence of intent to convey a fee simple was of this character, and appeared so clearly from the face of the instrument that the court could see that the words of inheritance were omitted by mistake. The decisions since this opinion was rendered which are apparently to the contrary are cases where the evidence of the mistake could not be drawn exclusively from the instrument itself, but required the aid of facts dehors the instrument and the interposition of the equitable powers of the court on allegations of mistake duly made. This case of Vickers v. Leigh is cited and affirmed in Fulbright v. Yoder, 113 N.C. 456, 18 S.E. 713; Moore v. Quince, 109 N.C. 89, 13 S.E. 872; Helms v. Austin, 116 N.C. 751, 21 S.E. 556. In Helms v. Austin the position is taken as accepted doctrine, and in Moore v. Quince, supra, was applied to the estate of the trustee as in the case we are now considering. In the deed before us we are of opinion that it was the clear intent of the grantor to pass a fee-simple interest in both the legal and equitable estates, the two uniting when the exigency of the trust had...