| N.C. | Jun 5, 1841
The defendant contended that in law the deed to Flynn, of September, 1826, was fraudulent, on account of the inadequacy of the consideration, and requested his Honor so to instruct the jury, which instruction was declined. The defendant further contended that the said (511) deed did not convey the fee simple in said lands, but that the estate of Flynn therein ceased by the death of Joseph R. Hanrihan; the said deed was fraudulent, and therefore defendant was not estopped to show that the title of Joseph R. Hanrihan was divested out of the lessor of the plaintiff by the judgment, execution, and sheriff's deed to Christie. It was proved that after the deed to Christie, to wit, in 1828, the lessor of the plaintiff surrendered the possession of the said lands to the agent of Christie; and the judge was requested to charge that thereby the possession was changed and was in Christie, hence the lessor could not recover in this action. The subscribing witnesses to the deed from Joseph R. Hanrihan stated that no money was paid, as far as they knew, as a consideration for the said conveyance. The defendant contended further, that a demand of possession before action brought should be shown.
His Honor charged the jury that if the defendant claimed under the heirs of Joseph R. Hanrihan, as stated herein, he was estopped to allege that the deed from the said Hanrihan to the lessor of the plaintiff was fraudulent as against Christie, and further, could not show that the title was in Christie, because he deduced no title from Christie to himself. His Honor instructed the jury that, upon the death of William K. Hanrihan, the fee simple in the said land vested in the lessor of the plaintiff; and that the said Joseph R. Hanrihan and his heirs, and those claiming under him, were estopped to deny the same, and that no demand of possession was necessary, if the defendant claimed title in himself. His Honor further charged the jury that the defendant could not avail himself of this surrender of possession, because he did not claim under Christie. Under these instructions, the jury found a verdict for the plaintiff; judgment was rendered thereon, and the defendant appealed to the Supreme Court. *384 This was an action of ejectment. Walter Hanrihan devised the land in controversy to his son, Joseph R. Hanrihan; the testator in his will then says: "In case my son Joseph R. Hanrihan leave no issue at the time of his death, I then devise the aforesaid land, already given him, to my son William K. Hanrihan." Joseph R. Hanrihan, in 1826, conveyed the land in fee, by deed of bargain and sale, to the lessor of the plaintiff, and bound himself and his heirs by general warranty. William died in 1834, and Joseph was his only heir at law. And Joseph died in 1837, without issue. The defendant on the trial contended that, as Joseph had but a conditional fee at the time he made the conveyance to the lessor of the plaintiff, the executory devise in fee over to William, which descended on Joseph, in 1834, on the death of William, did not pass by the said deed to the lessor of the plaintiff, but became vested in the heirs at law of Joseph, when he died without issue, in 1837. The judge was of the opinion that the deed of 1826 operated as an estoppel to the heirs of Joseph, and that they had no title. We will not now stop to inquire whether the estoppel, by force of the deed of 1826, extended any farther than the measure and extent of the estate which the bargainor then had in the land, as we are of the opinion that the heirs of Joseph are certainly rebutted by the warranty which descended on them. A lineal warranty is where the heir derived, or might by possibility have derived, his title to the land warranted, either from or through the ancestor who made the warranty. Littleton S., 703, 711; 2 Bl. Com., 301; 1 Shep. Touch., 336 (Preston's Ed.). And in all cases of a lineal warranty, if the right of the estate to be barred be the right of an estate in fee simple, it is a bar with or without any assets; for the rule is that, as to him that demandeth fee simple by any of his ancestors, he shall be barred and bound by lineal warranty that doth descend upon him, unless he be exempted by some statute. 1 Shep. Touch., chs. 337, 338. In this case it is the fee simple that is barred by the warranty descended on the heirs. But suppose it be said that, as the limitation over to William never vested in Joseph, the claimants are heirs of William as to the land which vested in (513) them on the death of Joseph, without issue (a question we do not decide), still, if the warranty be either lineal or collateral, the heirs here to the land are also heirs to the warranty, and they are barred either with or without assets; as Joseph, at the time the deed was made, was in possession, having an estate of inheritance in the land, he had afee conditional. By the statute of 4 Ann. C., 16, all collateral warranties, made by tenants for life, and persons not having an estate of *385 inheritance in possession, shall be void against the heir. But if A. be in tail in possession, remainder to B., his next brother, and A. makes a feoffment or levies a fine, with warranty from him and his heirs, and die without issue, this is a collateral warranty, which shall bar B., notwithstanding the statute, though no assets descend. 1 Shep. Touch., 341 (note 23, by Preston). And whether the warranty be lineal or collateral, the heirs in the present case are rebutted and forever barred, with or without assets.
Second. The defendant also contended that the title to the land was in one Christie. He offered evidence to show that at the time Joseph R. Hanrihan executed the deed to the plaintiff, Christie had a suit for assault and battery pending against him; that Christie obtained a judgment, issued an execution, levied on this land (alleging that it had been conveyed to defeat his recovery), had it sold, became the purchaser; that the sheriff executed to him a deed, and that the present lessor of the plaintiff surrendered to him the possession. The judge was of the opinion that, as the defendant claimed under the heirs of Joseph R. Hanrihan, he was estopped to allege that the deed was fraudulent as against Christie; and, further, that he could not show that the title was in Christie, because de deduced no title from Christie to himself. Without examining these positions, it is enough to say that the evidence so offered was altogether immaterial; for, assuredly, Christie could not acquire under his purchase any other or further estate than Joseph R. Hanrihan, the defendant in the execution, then had; and this estate was wholly at an end when the said Hanrihan died without issue.
PER CURIAM. No error.
Cited: S. c.,
Overruled: Myers v. Craig,
Dist.: Whitesides v. Cooper,
(514)