James Jones was seized in fee of a tract of land of which the premises were part, and in 1815 he devised it to his sons, James, Jesse, Thomas, William, and Friley, and their heirs, equally to be divided between them; "and if at the death of either or any of my said sons they should leave no surviving issue, my will is that the survivor or survivors of my said sons shall inherit the deceased child or children's part of the land." The sons entered, and one of them, Jesse, died in 1820 without having been married. In 1824 the other four united in a petition for partition, which was decreed and made, and thereby the premises described in the declaration were allotted to the son William, as his share, and he entered therein; and on 22 December, 1825, he sold the same to Robert Blount, and conveyed them by a deed of bargain and sale, with a covenant of general warranty for himself and his heirs. Blount entered, and he and those claiming under him, including the lessor of the plaintiff, had a continued possession up to a short period before the commencement of this suit, in March, 1851, when the defendant Leary took possession under James, Thomas, and Friley Jones, who claimed the premises upon the death of William Jones, in 1849, without leaving issue surviving. Upon those facts, stated in a case agreed, judgment was rendered pro forma in the Superior Court for the plaintiff, and the defendant appealed.
Without reference to any other point that might be made on the case, it is sufficient to say that the collateral warranty of William Jones, descending on his brothers, who were his heirs, bars them. Flynn v. Williams, 23 N.C. 509" court="N.C." date_filed="1841-06-05" href="https://app.midpage.ai/document/den-ex-dem-flynn-v-williams-3669673?utm_source=webapp" opinion_id="3669673">23 N.C. 509. It is an artificial (227) and hard rule, the practical operation of which, at this day, is to enable one man to sell another's land without compensation, directly or indirectly, which is not agreeable to the reason and justice of modern law. But it is nevertheless the law, because it was undoubtedly so anciently, and the Legislature has not seen fit to alter it; for it is not within the Statute of Anne, Rev. Stat., ch. 43, sec. 8, and, as far as is
seen at present, it is the only instance under our law which is not within that act; for, as estates tail under the act of 1784, eo instanti the tenant becomes seized, are turned into fees absolute, the conveyance of the tenant passes that estate and the land, and consequently a warranty is useless. But the present case is not within the Statute of Anne, because William Jones was not simply tenant for life nor entitled to the bare right to the inheritance, but had the fee simple in possession at the time he entered into the warranty. It is true, his fee was defeasible by way of conditional limitation, upon his dying without leaving surviving issue. But it was not the less the fee, and he was not liable for waste or for forfeiture by making a conveyance of the fee. He had an estate to him and his heirs in possession, with an executory devise over in fee; and consequently his warranty is not one of those made void by the act, as the warranty of an ancestor who had no estate of inheritance in possession of the land.
PER CURIAM. Affirmed.
NOTE. — Dissenting opinion of PEARSON, J., post, 408.
Doubted: Motts v. Caldwell, 45 N.C. 291" court="N.C." date_filed="1853-08-05" href="https://app.midpage.ai/document/graham-v-grahams-exr-3645020?utm_source=webapp" opinion_id="3645020">45 N.C. 291.
Overruled: Myers v. Craig, 44 N.C. 172; Gaither v. Walton, 60 N.C. 360;Southerland v. Stout, 68 N.C. 450; Board v. Henderson, 126 N.C. 698.
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