Starnes v. Hill

• Court: North Carolina Supreme Court
• Writing for the Court: SHEPHERD, C.J.
• Citation: Starnes v. Hill, 112 N.C. 1, 16 S.E. 1011 (N.C. 1893)
• Decision Date: 07 March 1893
• Parties: STARNES v. HILL.

16 S.E. 1011

112 N.C. 1

STARNES v. HILL.

Supreme Court of North Carolina

March 7, 1893

Syllabus by the Court.

1. A limitation to M. J. P. for and during the term of her natural life, and, in the event that R. O. P. shall outlive her, then to him for and during the term of his natural life, and after the termination of the said life estates, then to the heirs of R. O. P. Held v Held, that R. O. P. takes a contingent remainder, and that until the happening of the contingency the rule in Shelley's Case cannot operate so as to vest in him an indefeasible fee.

2. That, should R. O. P. fail to survive M. J. P., his heirs will take as purchasers,--no estate having vested in their ancestor; the word "heirs" being descriptio personarum.

3. The rule in Shelley's Case has not been abolished by section 5, c. 43, of the Revised Code, and section 1329 of the present Code.

Appeal from superior court, Buncombe county; BYNUM, Judge.

Action by Jesse R. Starnes against J. R. Hill for the specific performance of a contract to purchase real estate. There was judgment for plaintiff, and defendant appeals. Reversed.

Property was limited to M. for her life, and, in the event that R should outlive her, then to him for his life, and, after the termination of the life estates, then to the heirs of R. Held that, should R. fail to survive M., his heirs would take as purchasers, since the word "heirs" is descriptio personarum, and no estate ever vested in their ancestor.

Civil action for specific performance, tried at September term 1892, of Buncombe superior court, upon a case agreed before BYNUM, J.

The case agreed is as follows: "It is agreed that the facts set forth in the complaint in this cause are true, and it is agreed that the facts set up as matters of defense in the answer are true, as also are the matters alleged in the reply; and all the pleadings are referred to, and made a part of this case. It is further agreed that C. A. Moore, Robert C. Patterson, and his wife are all living at this time, and that said Patterson and wife have several living children. The deeds herein referred to are copied in, and are a part of, the pleadings, and the fee simple of the land in question was in William A. Holland and wife at the date of their said deed; and they were also seised in fee on the ___ day of July, 1874, when they contracted to sell the land to R. O Patterson, who is identical with Robert C. Patterson, whose name appears in the deeds. It is further agreed that the consideration money was paid by Robert C. Patterson to William A. Holland and wife on or before the 2d day of April, 1875, when their said deed was made to C. A. Moore, trustee, and others. The question intended to be presented by this case agreed is whether C. A. Moore, trustee, and Robert C. Patterson and wife, Madara J. Patterson, had the power under the deed of William A. Holland and wife, Mira McD. Holland, of date the 2d day of April, 1875, to pass the fee simple in the land in question as they undertook to do by their deed of the 21st day of March, 1878. If they were able to pass the fee simple, and did pass it, by their said deed, or if the same passed by operation of law, then the plaintiff shall recover, and the defendant shall accept the plaintiff's deed, and pay the purchase money agreeably to said contract; otherwise, the defendant shall recover his costs, and be discharged from his obligation to purchase the land in question."

The deed from William A. Holland and wife, the construction of which is the subject of this controversy, is as follows: "This indenture, made this the 2nd day of April, A. D., 1875, between Wm. A. Holland and wife, Mira McD. Holland, of the county of Buncombe, and state of North Carolina, of the first part, and C. A. Moore, trustee, of the second part, witnesseth, that whereas, on the ___ day of July, 1874, the said Wm. A. Holland and wife, Mira McD. Holland, bargained and sold to R. O. Patterson, for and in consideration of one thousand dollars ($1,000) to them in hand paid on said last-named day, the lot hereinafter described, and, by writing under their hands and seals, agreed to convey to the said R. O. Patterson, by good and sufficient deed, the same; and whereas, the purchase money has been paid in full, and the said R. O. Patterson has directed that the deed be made to C. A. Moore, the party of the second part, for said lot, for the use and trusts and purposes hereinafter mentioned: Now, therefore, in consideration of the premises, and the further consideration of the sum of one dollar to said parties of the first part in hand paid by the said party of the second part, the said parties of the second part do hereby give, grant, bargain, sell, and convey, and by these presents have bargained, sold, and conveyed, unto the said party of the second part, and his heirs, forever, a certain lot in the town of Asheville, county of Buncombe, and state of North Carolina, on the north side of Patton avenue, leading from the public square towards Smith's bridge, across the French Broad river; said lot containing about three and one third acres, and being the lot lately conveyed to the said Mira McD. Holland by C. M. McLoud,--beginning at a stake on said Patton avenue, within the limits of the town corporation, being the southwest corner of lot No. 1, and runs south, 73 west, 32 poles, to a stake; thence north, 17 west, 16 poles, to a stake; then north, 73 east, 34 poles, to a stake; then south, 17 east, to the beginning, 18 poles. To have and to hold to the said party of the second part and his heirs forever, in special trust and confidence, however, that the said C. A. Moore and his heirs will hold the same to the use of Madara J. Patterson for and during the time of her natural life, and, in the event that the said R. O. Patterson shall outlive his said wife, Madara J., that the said C. A. Moore and his heirs will then hold the same to the use of said R. O. Patterson for and during the term of his natural life, and, after the termination of the said life estates, that the said C. A. Moore and his heirs will then hold the same to the use of the heirs of the said R. O. Patterson, and them and their heirs forever. And the said William A. Holland and wife, Mira McD. Holland, for themselves and their heirs, do hereby covenant to and with the said C. A. Moore and his heirs that they are seised in fee simple of the said premises, and that they have right and full power to convey the same, and that the same is free from all incumbrances; and they do further covenant, for themselves and for their heirs, to and with the said C. A. Moore and his heirs, that they will warrant and defend the title to the said premises against the lawful claims of all persons whatsoever. In witness whereof, the said parties of the first part, and C. A. Moore, trustee, as aforesaid, have hereunto set their hands and seals this day and date above written. WM. A. HOLLAND. [Seal.] MIRA McD. HOLLAND. [Seal.] C. A. MOORE. [Seal.]"

On the 21st of March, 1878, the above-described land was conveyed, for a valuable consideration, by C. A. Moore, trustee, and said Robert O. Patterson and wife, Madara J., to one F. E. A. Roberts, in fee; the deed containing the following covenant: "And the said Robert O. Patterson, for himself and his heirs, covenants to and with the said F. E. A. Roberts, and his heirs that he and the said Madara J., his wife, and the said C. A. Moore, trustee, as aforesaid, are seised in fee of said lands, and have the right to convey the same; and the said Robert O. Patterson, for himself and his heirs, for the consideration aforesaid, unto the said F. E. A. Roberts, his heirs, will forever warrant and defend the title to the said lands against the claims and demands of all other persons whatsoever." It further appears that the plaintiff thereafter purchased the said land of the said Roberts, and on the 16th of October, 1891, entered into a contract with the defendant whereby the defendant contracted to purchase the same of the plaintiff for the sum of $20,000, executing his note to plaintiff for said sum, payable on the 18th of November, 1891. This action is brought by the plaintiff to compel specific performance of the contract, and the defendant resists the same on the ground that the plaintiff is unable to execute to him a title in fee to the premises, alleging in his answer "that the title to the land acquired by the plaintiff, and offered by the plaintiff to this defendant, is materially defective and imperfect, and that the plaintiff, on account of said defects, has no valid title whatsoever to said land, and cannot specifically perform his agreement to convey to this defendant said lot of land, by a good, perfect, and valid title, and that, therefore, the defendant ought not, in equity and good conscience, be compelled to specifically perform his contract to purchase the land, and to pay said note for twenty thousand dollars, executed for the purchase money thereof." The plaintiff, in his reply, alleged that the whole of the purchase money expressed in the deed to C. A. Moore was paid by said R. O. Patterson. His honor rendered judgment against the defendant, and decreed that he specifically perform the contract, and from this judgment the defendant appealed.

Gudger & Martin, for appellant.

W. W. Jones, for appellee.

SHEPHERD C.J.

It is well settled that "in limitations of a trust, either of a real or personal estate, *** the construction of limitations ought to be made according to the construction of limitations of a legal estate, unless the intent of the testator or author of the trust plainly appears to the contrary." Fearne, Rem. p. 125. As there is nothing in the deed from W. A. Holland and wife to C. A. Moore, trustee from which we are...