61 S.E. 71 | N.C. | 1908
This proceeding was brought before the clerk for the partition of land and transferred to the Superior Court for trial upon the issues raised by the pleadings. It was referred to Hon. F. A. Daniels, from whose findings of fact it appears that on 12 August, 1857, Betsy Eason, being the owner of the tract of land described in the petition, joined with her husband, John Eason, in the execution of a deed for the same to their sons, Julius C. Eason and John V. Eason, by which they conveyed to them the said tract of land in fee, reversing a life estate to themselves. At the same time they made the following indorsement on the deed:
Witnesseth further, that in the event either of our sons, Julius C. or John V. Eason, should die leaving no issue in wedlock born and living, *212 then and in that event the surviving brother to inherit all the within described lands, with the conditions within stated.
In testimony whereof, the said John and Betsy Eason have here set our hands and seals. This 12 August, 1857.
JOHN EASON, [SEAL] BETSY EASON. [SEAL]
(286) And it is further declared and intended by us both, whose names are hereunto assigned, that the said Julius C. and John V. Eason are to inherit the said described lands, and not to be accounted for in any future distribution of our estate of whatsoever kind, but each to share alike outside of said lands. This 12 August, 1857.
JOHN EASON, [SEAL] BETSY EASON. [SEAL]
The execution of the deed and the indorsement were attested by the same witnesses. It further appeared that the acknowledgment and privy examination of Betsy Eason were taken 2 September, 1857, before two justices of the peace appointed by the county court, and the execution as to John Eason, her husband, was proven by one of the subscribing witnesses at February Term, 1858, of that court, and the deed ordered to be registered. The certificate of acknowledgment and privy examination of Betsy Eason expressly mentioned the indorsements on the deed. The certificate of probate as to John Eason refers to the instrument the "deed and conveyance." The deed and indorsements were registered.
John V. Eason, on 5 February, 1874, executed to Julius C. Eason the recited consideration of $1 a release or quitclaim deed for his right, title, and estate, it being the one-half interest of J. C. Eason in the as described in the deed of 12 August, 1857. The quitclaim deed duly proven and registered 11 August, 1876.
Betsy Eason, widow of John Eason on 2 June, 1883, conveyed to Julius C. Eason and his heirs all her real estate in Sampson County (including the lands described in the deeds of 12 August, 1857, and 5 February, 1874), "in trust, to hold the same for the use of himself and his heirs and his brother John V. Eason and his heirs," provided if either should die without leaving issue at his death the portion so in trust for him shall be held to the use of the other and his (287) heirs." This deed conveyed a part of the said lands to each of the brothers by metes and bounds, and further provided that the held in trust by Julius C; Eason for his brother John V. Eason should be subject to a life estate which was reserved to the mother, Betsy E *213 The deed expressly refers to the deed of 12 August, 1857, and it is stated in the premises that it was executed to carry out more effectually the intention and purpose of John and Betsy Eason in making the said deed, and further recites that it was made in consideration of the said premises and $1. It further appeared that the interest of John V. Eason in the land in excess of his homestead was sold under execution against him by the sheriff, 13 March, 1900, and bought by Julius C. Eason at the price of $125, and a deed was executed to the purchaser, which was duly proven and registered. Julius C. Eason announced at the sale and before the land was sold "that it belonged to him at the death of his brother John V. Eason." The latter was about 50 years old at the time, had been married many years, and had no children. He died intestate and without issue in November, 1900, leaving a widow, Kate Eason, and the other plaintiffs and the defendant as his heirs at law. Betsy Eason died in 1892, before this proceeding was commenced.
The referee concluded as matters of law:
1. That the deed of 12 August, 1857, is inoperative and void, as it had not been properly probated, and the defective probate had not been cured by any statute; but if it is valid, the indorsements are integral parts of the deed, the same as if they had been written into it, and that the deed, thus considered, conveyed the land to the defendant J. C. Eason and his heirs, if he survived his brother, and the latter died without issue living at the time of his death.
2. That the quitclaim deed did not estop Julius C. Eason from asserting title to the interest in the land now claimed by the petitioners.
3. That Julius C. Eason, by virtue of the sheriff's sale and deed, acquired the interest of John V. Eason in the land, whether (288) a life estate or fee simple, under the deed of 12 August, 1857, if valid, and that there is no evidence of any suppression of biddings to render the sheriff's deed invalid.
4. That the defendant Julius C. Eason is sole seized of the land in controversy, and the petitioners, other than Kate Eason, have no interest therein, but that she is entitled to dower in the original share of John V. Eason.
The petitioners filed numerous exceptions to the report, which were all overruled by the court, and the report in all respects was confirmed, the court holding with the referee that Julius C. Eason is sole seized of the land, subject to the dower of Kate Eason, widow of John V. Eason.
Judgment was entered accordingly, and the petitioners appealed.
The first question to be determined is as to the effect of the three paper-writings executed by John and Betsy Eason, 12 August 1857. Do they all constitute one deed, or is the first of the writings to be treated as separate and distinct from the others and to be regarded a deed conveying the land in fee to Julius C. and John V. Eason in severalty, each taking the part allotted to him? These writings were all executed at one and the same time, and, in our opinion, must be considered together as intended to be one deed. Helmes v. Austin,
Having arrived at the conclusion that the contemporaneous writings executed by John and Betsy Eason, 12 August, 1857, constitute but one instrument in law, to be considered as if all their provisions had been inserted in the first of the writings, and that by a proper construction of them the land was conveyed to the uses declared by the grantors, it would seem to be unnecessary to decide whether the defective probate of these instruments was cured by Laws 1893, ch. 293; Revisal, sec. 1017. The acknowledgment and privy examination of the wife having been taken before the execution was proved as to the husband, the probate was defective under the law then existing. Burgess v. Wilson,
In view of the construction placed by us upon the deed of 1857, also useless to consider the effect of the quitclaim deed and the deed of the sheriff, as it must be that whatever interest Julius C. Eason did acquire under either of them passed to him under the deed of 1883
The plaintiffs also contended that the deed of 1883 is void for want of a sufficient consideration to raise a use in favor of Julius C. John V. Eason, because the statute of uses converts into a legal estate the use which was before only an equitable interest, and equity would enforce no use where there was not either a good or a valuable consideration to support it. But this doctrine does not apply since the statute concerning the registration of deeds, registration now taking the place of livery of seizin. It is for that reason said by the Court in Rowland v.Rowland, 93 N.C. at p. 221: "Our courts, in their policy of relaxing the rigid and technical rules of the common law, have since extended construction so as to bring all of our deeds of conveyance within (292) the purview of that statute. Thus it has been held that deed, bargain and sale and covenants to stand seized to uses are put on the same footing with feoffments at common law, with respect to seizin, the declaration of uses thereon, and the consideration." And in Love v.Harbin,
The quitclaim deed did not estop Julius E. Eason to deny the title of plaintiffs. "It is elementary learning that a quitclaim deed operate.' a release only of such interest as the maker has or as may be specific named. It is for this reason that no estoppel grows out of such a deed Nothing in respect to the maker's interest is asserted. The very terms of the deed put the purchaser upon notice that he is buying doubtful title. `In form a quitclaim deed is like the common-law release — a derivative or secondary common-law form. In substance it is similar to an original common-law deed, Creating an estate and not requiring for *217
its operation any estate in possession or otherwise in the grantee. In effect it transfers to the grantee whatever interest the grantor has in the property described, be it a fee, chattel interest, a mere license, or nothing at all.' 9 A. E. Enc., 104. It implies a doubtful title in the party executing it." Lumber Co., v. Price,
We are of the opinion, upon a consideration of the whole case, that the conclusion of the referee and the judgment affirming the same were correct.
Affirmed.
Cited: Real Estate Co. v. Bland,