Allen v. . Baskerville, 31 S.E. 383

Allen v. . Baskerville

31 S.E. 383 | N.C. | 1898

This conveyance was executed before the act of 1879, now The Code, sec. 1280, and hence the word "heirs" was indispensable to convey a fee. There is no allegation that it was omitted *113 by mistake, as was the case in Fulbright v. Goder, 113 N.C. 456. Thecestui que trust, "The Forestville Female Academy," was not incorporated, but if the conveyance had been to the trustees named and their heirs, it may be that the incorporation could now be taken out and the courts certainly would not let the trust fail for want of trustees. New trustees could be appointed upon application. But in the absence of the word "heirs" from both the premises and habendum, and of the averment of its omission by mistake (Vickers v. Leigh, 104 N.C. 248), the court could not enlarge the conveyance into a fee, either by a warranty in fee or by a covenant for quiet enjoyment. Anderson v. Logan, 105 N.C. 266; Batchelor v. Whitaker,88 N.C. 350; Stell v. Barham, 87 N.C. 62; Register v. Rowell, 48 N.C. 312;Buel v. Young, 25 N.C. 379; Wiggs v. Sanders, 20 N.C. 480; Robertsv. Forsyth, 14 N.C. 26. In truth, the words in the warranty, "to the trustees aforesaid and their successors perpetually," are not sufficient as a warranty in fee. Here, neither the trustees held a conveyance in fee (as in Holmes v. Holmes, 86 N.C. 205), nor did the cestui que trust have any corporate existence. The liberal rule laid down in Moore v. Quince,109 N.C. 85, therefore, cannot apply. The Code, secs. 3665 and 3667, apply only to religious societies and not to educational institutions.

The statute of limitations has no application. The last trustee died within less than seven years before this action was brought, even if the conveyance had been color of title after such death.

No error.

Cited: Keith v. Scales, 124 N.C. 510.

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