Fleming v. . Motz, 122 S.E. 369

Fleming v. . Motz

122 S.E. 369

N.C.

1924

Check Treatment

Adams, J.

Thе defendant requests our consideration of only two exceptions. The first involves a determination of the question whether by the ninth item of the will the testatrix intended to preserve the devised property as a home for her three sons so long ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍as any one of them lived; and if this question be resolved аgainst the defendant, it seems to be conceded that the devisees acquired the fee as tenants in common, subject to the contingency of a reversion to the “living onеs if either son died.” Southerland v. Cox, 14 N. C., 394; Rowland v. Rowland, 93 N. C., 214, 221.

The devise was not intended as an absolute restraint on alienation. If either son died his share was to ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍“rеvert” to the survivors, and a sale was to be made by the mutual consent of the three sons if living, *595 or evidently by tbe two surviving if one died before tbe conveyance was executed. We thеrefore do not concur in tbe suggestion ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍that it was tbe purpose of tbe testatrix to keep tbe place as “a home for all” until tbe death of tbe last survivor.

About three months after Robert’s death bis surviving brothers conveyed to bis widow, Mrs. Nanniе Hunt Eleming, a one-third undivided interest in tbe home, and on 14 June, 1921, Mrs. Fleming cоnveyed her interest to Paul Callen in consideration ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of one hundred dollars and maintenance during her natural life. Tbe dеfendant contends that tbe consideration of maintenance creates a charge upon tbe interest conveyed by her, and that subsequent purchasers took Callen’s title cum onere.

In Bailey v. Bailey, 172 N. C., 671, 674, tbe grantor conveyed certain tracts of land “in consideration of $791, and nay maintenance during my natural life” — almost tbe identical language employed in tbe deed bеfore us. Tbe court, noting tbe distinction running through several of our decisions, held that tbe consideration created a сharge upon tbe ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍land, and said: “Tbe meaning and effect of a provision for maintenance, frequently found in deeds аnd wills, have received different constructions, depending on tbe placing of tbe provision and upon other terms оf tbe instrument in which it appears. In some of tbe cases it is dеalt with as a personal covenant (Taylor v. Lanier, 7 N. C., 98; Ricks v. Pope, 129 N. C., 55; Perdue v. Perdue, 124 N. C., 163; Lumber Co. v. Lumber Co., 153 N. C., 50), in others as cоnstituting a charge on tbe rents and profits from tbe lands (Gray v. West, 93 N. C., 442; Wall v. Wall, 126 N. C., 408), and in others as a charge on tbe land itself (Laxton v. Tilly, 66 N. C., 327; Helms v. Helms, 135 N. C., 171).”

In Laxton v. Tilly and in Helms v. Helms tbe cоnsideration was similar to that mentioned in tbe deed to Paul Gаllen, and in tbe latter case Mr. Justice Connor said that tbe wording of tbe deеd did not constitute a condition subsequent, a breach of which entitled tbe grantor to avoid tbe deed, but operated rather as a covenant to furnish support, a breach of which constituted a charge upon tbe land. See, also, tbe same case on a rehearing reported in 137 N. C., 207.

According to these authorities tbe provision for maintеnance incorporated in tbe deed executed by Mrs. Fleming constitutes a charge upon tbe interest therein dеscribed and is enforceable not only against her immediate vendee, but against tbe subsequent purchasers who acquired their title with actual or constructive notice of tbe charge. Outland v. Outland, 118 N. C., 139; Wall v. Wall, supra.

For this reason tbe judgment of bis Honor is

Reversed.