35 N.C. 408 | N.C. | 1852
dissent. William Jones had an estate to him, and his heirs, in possession, with an executory devise over to his brothers, if he died without leaving a child living at his death. In 1825, he conveyed, by deed of bargain and sale, to Blount in fee, with general warranty, and in 1849 died without issue. Are his brothers barred by the warranty ? The statute of Ann provides, that all warranties made by a tenant for life, shall be void, and all collateral warranties shall be void, except those made by one having an estate of inheritance in possession. This case comes
■ In the present case,' the condition, so far from having become extinct, never was even suspended, but always remained in full force. It is the case of a devise, and by a conveyance -under the doctrine of'uses, and bv a devise,
The brothers of William Jones, then, under the devise, took the benfiet of the condition by which his estate was de ¡ feated. He died first. What is then to extinguish the condition, to the benefit of which they are entitled ? Nothing can be suggested but Ms warranty, and that, we have seen, does not bar a condition. The only way by which, in our case, it could have become extinct, was by the death of the brothers of William Jones, without issue, leaving him their heir. In which event, as he was entitled under the devise to a fee, subject to the condition, and by descent would also have become entitled to the condition, so as to have both the estate and the condition to which it was subject, the condition would have become extinct. But such is not our case, and herein it differs from Flinn v. Williams, 1 Ired. 509 — for there the fee was given to Robert Hanrahan subject to a condition in favor of his brother William, who died first without issue, leaving Robert his heir, whereby the latter became entitled to the condition and so had both the estate and the condition to which it was subject.
The question may be considered in another point of view, by supposing an executory devise or a conditional limitation to confer something more than the right to take advantage of a condition, and to pass a contingent future estate» in the nature of a contingent remainder. It may be remarked that the word remainder, although it has a strict technical meaning, is sometimes used as a genuine term to denote any limitation of an estate to be enjoyed in future. Blackstone so uses it. Where he divides estates in reference to the time of enjoyment, into such as are in possession, reversion or remainder. Coke so uses it. As accurate a writer as Fearne so uses it: and it is sometimes so
My conclusion is, that as the fee limited to William Jones, was defeated by his death without leaving a child, his warranty does not bar his brothers from asserting their title to the fee, which in that event was limited over to them. This conclusion is upon the supposition, that William Jones made a feoffment with warranty : but in fact, he made a bargain ■and sale, which is by no means as strong a conveyance, and if the former does not bar, of course the latter cannot. How far a warranty in a bargain and sale differs m its effect from one in a feoffment and to what extent, it is less stringent as ■a bar to the heirs, opens a wide field upon which it is .not necessary to enter.