Wright v. Brown

• Court: North Carolina Supreme Court
• Writing for the Court: FURCHES, J.
• Citation: Wright v. Brown, 116 N.C. 26, 22 S.E. 313 (N.C. 1895)
• Decision Date: 30 April 1895
• Parties: WRIGHT v. BROWN et al.

22 S.E. 313

116 N.C. 26

WRIGHT v. BROWN et al.

Supreme Court of North Carolina

April 30, 1895

Appeal from superior court, Beaufort county; Boykin, Judge.

Action by M. F. Wright against C. M. Brown and others to set aside a contract for the purchase of real estate. From a judgment for defendants, plaintiff appeals. Affirmed.

A devise of an estate to a woman and her heirs, and in case of her death without issue, to another and her heirs, creates a contingent estate, which does not presently vest in the remainderman.

Chas F. Warren, for appellant.

W. B Rodman, for appellees.

FURCHES J.

James Ellison, being the owner in fee simple of the lands mentioned in the case agreed, devised the same to his granddaughter Polly Ann Ellison, "to be hers and her heirs and assigns. But in case my said granddaughter, Polly Ann, do die leaving no lawful issue at her death, then I devise and bequeath *** to my daughter Augusta L. Ellison, her heirs and assigns,"--and died in 1865. That some time after the death of the testator the said Polly Ann and Augusta L. sold and conveyed this land to Ida M. Swindell by deed with warranty. And by successive conveyances from Ida M. Swindell the defendant became the owner thereof, and has contracted to sell the same to the plaintiff, Wright. That since the date of the conveyance to Ida M. Swindell, the said Augusta L. has died, leaving a son surviving her, who is her heir at law. But the said Polly Ann is still living, unmarried, and is about 50 years of age. Upon these facts the plaintiff Wright, alleges that the defendant Brown is unable to give him a good and indefeasible title to the lands, and for this reason refuses to pay plaintiff the purchase money. And this presents the question for our consideration,--whether the defendant can convey a good and clear title to plaintiff. If he can, plaintiff should not recover in this action. If he cannot, then he should recover.

By the terms of the will of James Ellison, Polly Ann took a conditional fee simple in the land, liable to be determined upon said Polly Ann's dying without leaving issue surviving her at her death. And the said Augusta L. took the remainder, denominated an "estate or interest by way of executory devise." The defendant has a deed from Polly Ann, with warranty, and if it should turn out that she has the fee simple the trouble would end, and the defendant would have a good title. Therefore it is seen that the trouble lies in determining what estate or interest Augusta L. took in the land. All hands admit that she took some interest, and defendant contends she took a present vested estate, though subject to be divested by the said Polly Ann leaving issue her surviving, at her death; that this estate would pass by descent, and might be devised and assigned. This the plaintiff denies. The estate of Augusta L., whatever it be is clearly contingent, and, in contemplation of law, may never vest. This depends upon the fact whether Polly Ann dies without leaving issue. If it depended upon the death of Polly Ann alone, it would be a vested estate or interest, as it is certain that Polly Ann will die. But it does not do this. The other condition is added,--that she must die "without leaving issue...