153 S.E. 458 | N.C. | 1930
This is an action; the controversy is over sixteen acres of land in Cane River Township, Yancey County, N.C. The action is to restrain D. R. Fouts, commissioner, and the other defendants who claim the land as tenants in common, from a sale of the land in an action brought for partition.
On 18 November, 1912, James Buckner and Sarah Ann Buckner made a deed to the land — pertinent portions of the deed: (a) "This deed made this 18 November, 1912, by James Buckner and Sarah Ann Buckner, of Madison County, and State of North Carolina, of the first part, to Eller Riddle andher children, of Yancey County and State of North Carolina, of the second part, (b) Witnesseth: That the said James Buckner and Sarah Ann Buckner, in consideration of fifty dollars ($50) to ________ paid by Eller Riddle, the receipt of which is hereby acknowledged, have bargained and sold, and by these presents do bargain, sell and convey to the said Eller Riddle andchildren, her bodily heirs and assigns, . . . (c) To have and to hold the aforesaid tract of land after the death of James Buckner and Sarah Ann Buckner. . . . To have and to hold the aforesaid tract or parcel, . . . and all privileges and appurtenances thereto belonging to the said . . . . . . heirs and assigns, to ________ only use and behoof forever." The deed also indicates that a blank form was filled in and the covenants usually in a deed were crossed out.
The plaintiff claims title under a deed from Eller Riddle and husband James Riddle to Jeter Buckner, dated 16 September, 1918, conveying a fee-simple title to the land, and subsequent conveyances.
Defendants claim under a partition proceeding to sell the land for division as children of Eller Riddle, there being eight, and Eller Riddle and the parties who had a life estate being dead — D. R. Fouts, under the proceeding having been appointed commissioner to sell the land.
From a judgment permanently restraining defendant D. R. Fouts, commissioner, and the children of Eller Riddle from selling the land, defendants except, assign error and appeal to the Supreme Court. We think the only question for our decision is whether the deed from James Buckner and Sarah Ann Buckner vested a fee-simple title in Eller Riddle, or an estate as tenants in common in Eller Riddle and her children. We think an estate vested as tenants in common in Eller Riddle and her children. *804
There is no question under our authorities that standing alone the language under the witnesseth clause "do grant, bargain, sell and convey to the said Eller Riddle and children her bodily heirs and assigns" would convey a fee simple. Harrington v. Grimes,
In the Harrington case, supra, the deed in the premises was (a) "to N.J. Buckner and her bodily heirs" in the witnesseth clause (b) "convey to said N.J. Buckner and her bodily heirs and assigns" habendum clause (c) "and her bodily heirs and assigns" warranty clause (d) "covenant with the said N.J. Buckner and her bodily heirs and assigns." In that case at p. 79, it is said: "But no such intent can be gathered from this instrument, nor does it contain any words or expressions to qualify or affect the ordinary meaning of the words `bodily heirs' in connection with the estate limited to N.J. Buckner, and the deed, as stated, has been properly held to convey to such grantee an estate in fee simple." Under the law prior to C. S., 1734, the deed conveying the land to "her bodily heirs" would have conveyed a fee tail, which, under the statute, supra, was converted into a fee simple. We think the cases of King v. Stokes,
In the Puckett case, supra, at p. 348, is the following: "In the will now under consideration, we think the testator Pace has so explained and qualified the use of the words `her bodily heirs' as to plainly indicate that he meant the children or issue of his daughter Martha, and that the words are not employed in their legal or technical sense as representing heirs in general, but only as descriptive of a certain class of heirs."
In Ellington v. Trust Company,
In ascertaining the intent of the testator, we think an estate vested as tenants in common in Eller Riddle and her children. We construe the entire will to sense the intent (1) In the premises the conveyance purports to be to "Eller Riddle and her children." (2) In the witnesseth clause "convey tothe said Eller Riddle and children her bodily heirs and assigns." The words "her bodily heirs" we think have reference to "and children" and affects the ordinary technical meaning "her bodily heirs." This construction would reconcile with the clear language in the premises. The words were used asdescriptio personae and not in *805 their technical sense. The habendum clause is left blank and the warranty clause is stricken out. We think the better interpretation is that the land vested in "Eller Riddle and her children." This at least is clear language in the premises, and the other part of the deed can be reconciled with this construction. twice in the deed (1) "Eller Riddle and her children" (2) "Eller Riddle and children," etc.
Martin v. Knowles,
In Tate v. Amos, 197 N.C. at p. 161, citing numerous authorities, is the following: "This Court has uniformly held that a devise to `A' and her children, `A' having children, vests the estate to them as tenants in common." The judgment below is
Reversed.
