Whitley v. Arenson

• Decision Date: 31 January 1941
• Docket Number: 594.
• Citation: 12 S.E.2d 906,219 N.C. 121
• Parties: WHITLEY et al. v. ARENSON et al.
• Court: North Carolina Supreme Court

12 S.E.2d 906

219 N.C. 121

WHITLEY et al. v. ARENSON et al.

No. 594.

Supreme Court of North Carolina

January 31, 1941

Civil action to restrain sale of land under execution.

A temporary restraining order was issued and continued to the final hearing, when the facts were agreed upon and the cause submitted to the court for determination thereon. In summary they follow:

1. On 1 March, 1920, J. I. Efird and wife conveyed a tract of land in Stanly County, consisting of 8 3/4 acres, to "M E. J. Kelly and her heirs by T. D. Kelly".

A printed form was used in the preparation of this deed. The blank spaces were filled out by the county surveyor. In the premises the grantee is designated " M. E. J. Kelly and her heirs by T. D. Kelly *** of the second part". In the granting clause, in the habendum and in the warranty the appellation of the grantee is, "part ies of the second part, their heirs and assigns". (Italics within the quotations used to show insertions with pen and ink.)

2. On 28 April, 1930, in the Superior Court of Mecklenburg County, L. Arenson obtained a judgment against T. D. Kelly and his wife, M. E. J. Kelly, for $1,000, and duly docketed transcript thereof in Stanly County. Execution was issued on this judgment, and the present action is to restrain sale thereunder.

3. Plaintiffs are the children of M. E. J. Kelly by her husband T. D. Kelly, and were living at the time of the delivery of the deed in 1920, except Lola F. Kelly, one of the plaintiffs, who was born on 1 March, 1922.

The court being of opinion that the deed in question "conveyed to M. E. J. Kelly a fee tail special which by our statute is converted into a fee simple", held that the plaintiffs have no interest in the property, dissolved the injunction and dismissed the action. From this ruling the plaintiffs appeal, assigning errors.

W. L. Mann, of Albemarle, and Carswell & Ervin, of Charlotte, for appellants.

Morton & Williams, of Albemarle, for appellees.

STACY Chief Justice.

The case turns on the proper construction of the Efird deed of 1 March, 1920. This deed conveys an estate to "M. E. J. Kelly and her heirs by T. D. Kelly". At common law such an estate was a fee tail special, which is converted by C.S. § 1734 into a fee simple absolute. Revis v. Murphy, 172 N.C. 579, 90 S.E. 573.

According to our previous decisions, C.S. § 1739, providing that "a limitation by deed, will, or other writing, to the heirs of a living person, shall be construed to be to the children of such person", applies only when there is "no precedent estate conveyed to said living person". Marsh v. Griffin, 136 N.C. 333, 48 S.E. 735; Jones v. Ragsdale, 141 N.C. 200, 53 S.E. 842. Nor is this section applicable "where there is a conveyance to a living person with a limitation to his heirs". Thompson v. Batts, 168 N.C. 333, 84 S.E. 347, 348. In other words, when the limitation is to a living person and his bodily heirs, general or special, C.S. § 1734 applies and C.S. § 1739 does not. A fortiori, the latter section would not apply when the limitation is to a living person and his heirs.

The word "heirs" is primarily a word of limitation and not a word of purchase. 8 R.C.L. 1056. In Neal v. Nelson, 117 N.C. 393, 23 S.E. 428, 431, 53 Am.St. Rep. 590, it was said that "a deed to a person not then living 'and his heirs' is void because the word 'heirs' is a word of limitation, and not of purchase". Ready v. Kearsley, 14 Mich. 215, 225. By the same token, then, a deed to "A and his heirs", A being alive, is good and vests in A a fee-simple estate. The word "heirs", in such a case is not a word of purchase carrying title to the heirs, but a word of inheritance qualifying the estate of the grantee. Hunter v. Watson, 12 Cal. 363, 73 Am.Dec. 543. And the authorities so hold. Carolina Real Estate Co. v. Bland, 152 N.C. 225, 67 S.E. 483; Boggan v. Somers, 152 N.C. 390, 67 S.E. 965; Walker v. Miller, 139 N.C. 448, 52 S.E. 125, 1 L.R.A.,N.S., 157, 111 Am.St.Rep. 805.

At common law, in order to convey an estate of inheritance it was necessary that the word "heirs" appear in connection with the name of the grantee, either in the premises or in the habendum of the deed. 2 Blk. 298; Carolina Real Estate Co. v. Bland, supra. "It is familiar elementary learning", says Ashe, J., in Stell v. Barham, 87 N.C. 62, "that the word heirs is necessary to be used either in the premises or habendum of a deed to convey an estate of inheritance". True, he was then speaking of a deed executed in 1854 and of the law as it existed prior to the enactment of Chap. 148 Laws 1879, now C.S. § 991, providing that a deed with or without the word "heirs" should be construed a conveyance in fee simple, "unless such conveyance in plain and express words shows, or it is plainly intended by the conveyance or some part thereof, that the grantor meant to convey an estate of less dignity". But this statute did not purport to change, and does not change, a common-law conveyance of inheritance to a conveyance of less effectiveness, i. e., to one conveying only a life estate. Cullens v. Cullens, 161 N.C. 344, 77 S.E. 228, L.R. A.1917B, 74. Quite the reverse was intended and accomplished by the statute. No Act of Assembly has been found which purports to convert words of inheritance into words of purchase.

Speaking to the question in Smith v. Proctor, 139 N.C. 314, 51 S.E. 889, 891, 2 L.R.A.,N.S., 172, Hoke, J., delivering the opinion of the Court, said: "In cases, therefore, where the word 'heirs' or 'heirs of the body' are used, they will be construed to limit or define the estate intended to be conveyed, and will not be treated as words of purchase, and no supposed intention on the part of the testator or grantor, arising from the estate being conveyed, in the first instance, for life, will be permitted to control their operation as words of limitation. In all such cases the estate becomes immediately executed in the ancestor, who becomes seised of an estate of inheritance."

An heir, according to Blackstone, is one upon whom the law casts an estate at the death of the ancestor. 2 Blk., ch. 14. "Heir" and "ancestor" are correlative terms. There can be no heir without an ancestor. Hence, there can be no heirs of the living, nemo est haeres viventis. One may be heir apparent or heir presumptive, yet he is not heir, during the life of the ancestor. Campbell v. Everhart, 139 N.C. 503, 52 S.E. 201. Consequently, under the strictness of the old law, a limitation to the heirs of a living person was void for want of a grantee. The purpose of C.S. § 1739 is to validate such limitations, whether created by deed, will or other writing, by construing "heirs" to mean "children", when there are any, unless a contrary intent appears, and this is its only purpose.

In ultimate effect, there is no difference between a conveyance to "A and his heirs" and a limitation to "A for life, remainder to his heirs". They both import fee-simple estates, the former by use of words of inheritance and the latter by operation of the rule in Shelley's Case. Starnes v. Hill, 112 N.C. 1, 16 S.E. 1011, 22 L.R.A. 598; 2 Wash. Real Prop. 647; Williams Real Prop. 254.

In Perrett v. Bird, 152 N.C. 220, 67 S.E. 507, it was held that a devise to "David Oates, and the lawful heirs of his body lawfully begotten" carried the fee to David Oates.

The deed in Harrington v. Grimes, 163 N.C. 76, 79 S.E. 301, is identical in principle with the one here presented for construction. There, in the premises, in the granting clause, in the habendum and in the warranty the grantee is designated as "N. J. Buckner and her bodily heirs". The decision in that case is a direct authority for the holding here. The only difference between the deeds considered in the two cases is, that the one creates a fee tail, while the other creates a fee tail special, both of which are now converted into fee-simple estates. Revis v. Murphy, supra. For all practical purposes, the two cases are exactly alike. They are the same in principle. It is not perceived how we can reverse the judgment below without overruling the Harrington-Grimes decision, opinion by Hoke, J. Also, of similar import are the decisions in Blake v. Shields, 172 N.C. 628, 90 S.E. 764; Paul v. Paul, 199 N.C. 522, 154 S.E. 825, and Sessoms v. Sessoms, 144 N.C. 121, 56 S.E. 687.

"So it has been held that a deed conveying land to a married woman and her heirs 'by her present husband' vested an estate in fee"--Adams, J., in Morehead v. Montague, 200 N.C. 497, 157 S.E. 793, 794.

The reasoning in the case of Willis v. Trust Co., 183 N.C. 267, 111 S.E. 163, 164, is likewise in full support of the judgment below. There, it was said that a deed "to Mary Regan and her bodily heirs" conveyed a fee-simple estate under C.S. § 1734, which was later affected in the warranty by a limitation over in case she should die without issue or bodily heirs living at the time of her death. Here, we have no such limitation over in any part of the deed. There was no suggestion in that case, however, that the word "heirs" should be construed to mean "children".

It was said in Marsh v. Griffin, supra, that C.S. § 1739 "providing that a limitation 'to the heirs of a living person shall be construed to be to the children of such person,' applies only when there is no precedent estate conveyed to said living person, else it would not only repeal the rule in Shelley's Case, but would pervert every conveyance to 'A. and his heirs' into something entirely different from what those words have always been understood to mean". And further, "the words 'bodily heirs' have the same meaning as 'heirs of the body,' and are words of limitation, and not words of purchase". To like effect are the decisions in Worrell v. Vinson, 50 N.C. 91; Donnell...