11 S.E. 361 | N.C. | 1890
The said Mildred Bowen was twice married — first to Jos. Bowen, by whom she had a son, Thomas Bowen, who died, without issue, in April, 1879, and Mary F. Bowen, who intermarried in 1846 with Joseph Anderson, who died in 1847; and second, to J. H. Wilkins, the issue of which marriage were the plaintiff W. T. Wilkins and the plaintiff Sarah J. Wilkins, who intermarried with John Tillinghast. J. H. Wilkins died in the year 1884, and this action was brought in the year 1885.
The defendant offered in evidence a deed from W. T. Wilkins and S. J. Wilkins (now Tillinghast), dated in 1864, covering the locus in quo, and contended that it was a deed in fee-simple. The Court held that it conveyed only an estate during the life of J. H. Wilkins, and defendant excepted.
The defendant asked that an issue be submitted to the jury as to the true construction of the deed. The Court declined, and defendant excepted.
The Court, at the close of the evidence, remarked to counsel that it would have submitted an issue as to whether the deed had been made for a life estate by mutual mistake, but there had been no evidence tending that way.
The defendant then offered in evidence a deed from Martin Walker, Sheriff of Rutherford County, to defendant, for all the interest (268) of J. H. Wilkins in the locus in quo, dated November 3, 1869.
The Clerk testified that after diligent search he could find no execution against J. H. Wilkins, as recited in said deed. The defendant entered into the possession of the property soon after the date of said deed, and had been in continuous possession ever since. *229
EXHIBIT "A."
This indenture, made and entered into this 12th day of September, in the year of our Lord one thousand eight hundred and sixty-four, between Sarah Jane Wilkins and William Terrell Wilkins of the county of Rutherford, State of North Carolina, of the one part, and J. H. Wilkins, of the aforesaid county, of the other part —
Witnesseth: That for and in consideration of the sum of two thousand dollars, to them in hand paid by the said J. H. Wilkins, doth give, grant, bargain, sell and convey, all that piece or parcel of land, or so much as our interest, lying and being in the township of Rutherfordton, and county and State aforesaid, beginning at the corner of said lot, next to the court-house, and runs thence 8 west with Main street 80 feet 7 inches, to the corner of McEntire's lot, on said street; thence north 82 west 116 feet 10 inches to a stake, on the side of the back street; thence south 8 west 94 feet 7 inches to the corner of the lot purchased of Graham; thence with the line of said lot south 82 east 282 feet 10 inches to the public square, the other corner of the Graham lot; thence north 82 east 14 feet with the line of the public square to a stake; thence south 82 east to the beginning, agreeable to the plan and plot of said lot and premises: to have and to hold all our interest in the above mentioned lot from ourselves, our heirs, and all that may claim under us, and our assigns forever, all that above mentioned lot and (269) premises.
SARAH J. WILKINS. [Seal.] W. T. WILKINS. [Seal.] Witness: WM. ANDERSON, T. B. TWITTY.
The defendant asked the Court to instruct the jury that plaintiff, on the evidence, could not recover, because —
1. The claim was barred by the statute of limitations.
2. Because James Bowen's will did not give his executors power to make sale of his realty.
3. Mrs. Anderson was sole heir at law of Joseph Bowen, and that her title was barred by statute of limitations.
No title or color of title in Joseph Bowen having been shown, the Court so refused to charge. Exception by defendant. Verdict for the plaintiff on all the issues as set out in the record.
Motion by defendant for new trial, assigning as errors the exceptions above noted. Motion overruled; judgment signed; appeal by defendant.
Counsel for defendants abandoned in this Court the exceptions not set forth above. The defendant excepted. *230
The facts relied upon as constituting the basis of a defence or counterclaim, must be set out in an answer with the same precision as is requisite in a complaint. Rountree v. Brinson,
But the defendant contends that even in a Court of law, under the old system, the deed would have been so construed by transposing the word "heirs" from the covenant of warranty to the habendum as to make it pass to J. H. Wilkins the fee in the land conveyed. The old established rule was that, in order to create an estate of inheritance, the word "heirs" must appear either in the premises or the habendum of the deed. 2 Black, 298; Stell v. Barham,
But where there are no words of conveyance in the instrument, or where the word "heirs" does not appear in any part of the deed, except in connection with the name of the bargainor, or with some expression such as "party of the first part," used in the clause of warranty, or elsewhere, to designate the grantor, the deed, if executed before the Act of 1879 was passed, will be construed as vesting only a life estate in the bargainee.Batchelor v. Whitaker,
The material portions of the conveyance, referred to as exhibit "A," are as follows: "Witnesseth, that for and in consideration of the sum of two thousand dollars, to them in hand paid by the said J. H. Wilkins, doth give, grant, bargain, sell and convey all of the piece or parcel of land, or so much as our interest, lying and being," c. (giving a description of the land), "to have and to hold all of our interest in the above mentioned lot from ourselves, our heirs and all that may claim under us, and our assigns forever, all that above mentioned lot and premises." The instrument is written in the first person and the word "heirs" is used only once, qualified by the pronoun "our," and plainly referring to the bargainors, so that no transposition can cure the fatal defect.
If there were no other difficulty in the way, we could not declare that the word of inheritance had been omitted by mistake, where there is no allegation of mistake in the answer, and we find among all the cases decided by this Court, no instance in which the word "heirs," when distinctly used in connection with the word or designation (272) of a bargainor, in a covenant of warranty, has been made to serve the additional purpose of creating an estate of inheritance in the bargainee.
There is no error. The judgment of the Court below must be affirmed.
Affirmed.
Cited: Saunders v. Saunders,