The main question presented is, whether the devise to "B. D. Chamblee during his natural life and at his death to his bodily heirs" conveyed a fee simple or not. It clearly does under the rule in Shelly's case, and that rule is still in force in North Carolina. Dawson v. Quinnerly,118 N.C. 188; Nichols v. Gladden, 117 N.C. 497; Starnes v.Hill, 112 N.C. 1; Leathers v. Gray, 101 N.C. 162, in which cases the rule is stated, thoroughly considered and affirmed. It applies to devises equally with conveyances. 1 Fearne Rem., 89. The rule originated in the Feudal law, and a case construing it was reported in Coke's Reports, 94 (though the rule itself is found as far back as Year Book, 18 Edward II), and is based upon reasons which have long since ceased to exist. 1 Fearne Rem., 84; Williams R. P., 254, note. It is true, the rule contradicts and thwarts the intent of the grantor or devisor whose expressed purpose to confer an estate for life only upon the first taker is enlarged by an arbitrary rule of law into a fee simple, and the expressed purpose to confer all except the life estate upon the heirs is restricted so as to give them nothing. Still, it is a long established rule of property and cannot be changed except by legislative enactment. This, it seems, has been done in a majority of the States, but it has not been done in North Carolina. The rule being in force when the will was executed, the will was in contemplation of law drawn with reference (176) thereto. The deed made to one of the daughters had no
connection with the will, having, in fact, been made several years before, was not competent and was properly excluded.
The Court below properly held that B. D. Chamblee was estopped by the judgment in the foreclosure proceeding. There was not sufficient evidence to go to the jury as to the alleged insanity of B. D. Chamblee, and if there had been, the former judgment against him could not be impeached in this collateral way, but could only be attacked by a direct proceeding.Thomas v. Hunsucker, 108 N.C. 720, and Brittain v. Mull, 99 N.C. 483, and certainly the purchaser without notice would be protected, even if the judgment could be set aside. Odom v. Riddick, 104 N.C. 515; Thomas v.Hunsucker, supra.
Affirmed.
Cited: Edgerton v. Aycock, 123 N.C. 136; Marsh v. Griffin, 136 N.C. 335;Tyson v. Sinclair, 138 N.C. 24; Bees v. Smith, 149 N.C. 144; Pricev. Griffin, 150 N.C. 528; Robeson v. Moore, 168 N.C. 389.