Turpin v. Jarrett

• Court: North Carolina Supreme Court
• Citation: Turpin v. Jarrett, 226 N.C. 135, 37 S.E.2d 124 (N.C. 1946)
• Decision Date: 27 February 1946
• Docket Number: 18
• Parties: TURPIN et al. v. JARRETT et al.

37 S.E.2d 124

226 N.C. 135

TURPIN et al. v. JARRETT et al.

No. 18

Supreme Court of North Carolina

February 27, 1946

Civil action in ejectment and to remove cloud on title.

The case was heard on facts agreed which are in substance as follows:

On June 29, 1885, John Messer and wife conveyed a tract of land in Jackson County to Jane Messer. The granting clause contains no words which undertake to limit or define the estate conveyed, but the habendum clause is 'to the said Jane Messer and her bodily heirs', and immediately following the warranty clause there was inserted the following 'Provided, however, that if the said Jane Messer should die without issue after her death the lands mentioned in this deed is to descend to her brothers and sisters and this is to be her full share of our estate. ' The grantors reserved a life estate. John Messer and wife each died prior to March 21, 1911. There was born to Jane Messer one son, Charlie Messer, who predeceased her but left surviving him a widow and five or six children who are grandchildren and great-grandchildren of Jane Messer. On March 21, 1911 Jane Messer conveyed to Mrs. M. Y. Jarrett, one of the defendants, the locus in quo, a part of the tract described in the John Messer deed, and she has been in the sole possession thereof since that date. Jane Messer died February 14, 1941.

While not so stipulated it is treated as a fact that the plaintiffs are the persons named in the limitation over.

The plaintiffs allege that they are the owners of the property and the claim of the defendant Mrs. Jarrett casts a cloud upon their title. They pray judgment that they are the owners of the property described in the complaint, free and clear of any claim of defendants.

The parties waived trial by jury and submitted the cause on the facts agreed. Thereupon the court adjudged that the defendant Mrs. M. Y. Jarrett is the owner and entitled to possession of the property in controversy, free and clear of any claim of plaintiffs. Plaintiffs excepted and appealed.

M. V Higdon, of Sylva, and R. L. Phillips, of Robbinsville, for appellants.

Hugh E Monteith, E. P. Stillwell, and Dan K. Moore, all of Sylva, for appellees.

BARNHILL Justice.

On this record the rule in Shelley's case is not controlling. Matthews v. Matthews, 214 N.C. 204, 198 S.E. 663; Williamson v. Cox, 218 N.C. 177, 10 S.E.2d 662; Paul v. Paul, 199 N.C. 522, 154 S.E. 825; Willis v. Mutual Loan & Trust Co., 183 N.C. 267, 111 S.E. 163; Ford v. McBrayer, 171 N.C. 420, 88 S.E. 736; Dawson v. Ennett, 151 N.C. 543, 66 S.E. 566; Harrell v. Hagan, 147 N.C. 111, 60 S.E. 909, 125 Am. Hampton v. Griggs, 184 N.C. 13, 113 S.E. 501, 34 A.L.R. 952.

The deed to Jane Messer conveyed a base or qualified fee, defeasible upon her death without 'bodily heirs' or 'issue', upon the happening of which event plaintiffs would become seized and possessed of the title under the limitation over. Smith v. Ellington-Guy Lumber Co., 155 N.C. 389, 71 S.E. 445; Hutchinson v. Lucas, 181 N.C. 53, 106 S.E. 150; Thompson v. Humphrey, 179 N.C. 44, 101 S.E. 738; Willis v. Mutual Loan & Trust Co., supra, James v. Griffin, 192 N.C. 285, 134 S.E. 849; West v. Murphy, 197 N.C. 488, 149 S.E. 731.

To determine the effectiveness of the limitation over the roll must be called as of the date of the death of the first taker. It is so declared by statute. Chap. 7, P.L.1827, now G.S. s 41-4; Patterson v. McCormick, 177 N.C. 448, 99 S.E. 401 (citing 26 prior decisions); Perrett v. Bird, 152 N.C. 220, 67 S.E. 507; Smith v. Ellington-Guy Lumber Co., supra; Rees v. Williams, 164 N.C. 128, 80 S.E. 247; Willis v. Mutual Loan & Trust Co., supra; Vinson v. Gardner, 185 N.C. 193, 116 S.E. 412; Dupree v. Daughtridge, 188 N.C. 193, 124 S.E. 148; American Yarn Co. v. Dewstoe, 192 N.C. 121, 133 S.E. 407; Massengill v. Abell, 192 N.C. 240, 134 S.E. 641; Henderson v. Western Carolina Power Co., 200 N.C. 443, 157 S.E. 425, 80 A.L.R. 497; Hudson v. Hudson, 208 N.C. 338, 180 S.E. 597; Moseley v. Knott, 212 N.C. 651, 194 S.E. 100; Thames v. Goode, 217 N.C. 639, 9 S.E.2d 485.

So then we come to the primary question posed by this appeal: Do the terms 'bodily heirs' and 'issue' as used in the deed include lineal descendants other than children? Our decisions answer in the affirmative.

'Bodily heirs', when used as descriptio personarum, and 'issue' are synonymous terms connoting and embracing children, grandchildren, and other lineal descendants. Matthews v. Matthews, supra; Harrell v. Hagan, supra; Bowden v. Lynch, 173 N.C. 203, 91 S.E. 957; Albright v. Albright, 172 N.C. 351, 90 S.E. 303; Pugh v. Allen, 179 N.C. 307, 102 S.E. 394; Willis v. Mutual Loan & Trust Co., supra; Hampton v. Griggs, supra; Moseley v. Knott, supra; Brown v. Holland, 221 N.C. 135, 19 S.E.2d 255; Elledge v. Parrish, 224 N.C. 397, 30 S.E.2d 314. For cases in other jurisdictions see 22 Words and Phrases, Perm.Ed., p. 742 et seq. See also 5 Words and Phrases, Perm.Ed., p. 583 et seq.

Discussing the question in Matthews v. Matthews, supra [214 N.C. 204, 198 S.E. 665], we said: 'The term 'bodily heirs' * * * is more comprehensive than the term children, and means progeny or issue, and includes children, grandchildren and other lineal descendants. It is true that in some of the cases in which this term is interpreted when used as descriptio personarum, it is said that it means children. However, an examination of those cases will disclose that only children were concerned and no grandchildren were involved.'

The court below, it is true, held that upon the birth of Charlie Messer the condition in the deed was fulfilled and, non constat he predeceased Jane Messer, she thereupon became seized in fee absolute, but this was harmless error. She left surviving grandchildren. Hence the event--death without issue--upon the happening of which plaintiffs were to take never occurred. Thus they possess no interest in or claim to the property...