86 S.E. 302 | N.C. | 1915
Proceedings for sale of land for division, instituted by plaintiffs before Superior Court Clerk of Pasquotank County. Defendant having pleaded sole seizin of the land in Cora L. Mason, the cause was transferred to the civil-issue docket of Superior Court of said county.
At close of plaintiff's testimony, on motion, there was judgment of nonsuit, and plaintiff excepted and appealed. On the hearing it was made to appear that on the first day of August, 1911, T. M. Gard and his wife, Colinda, executed to their daughter, Cora L. Gard, a deed in fee simple for the house and *584 lot in controversy, with full covenants, and that, just after the description of the property, the said deed contained the following provision: "It is understood and agreed between all the parties herein that if the said Cora L. Gard marries, this property reverts back to the said grantors, their heirs and assigns"; that, at the time of the execution of the said deed, the grantors had three children, plaintiffs, A. W. Gard and his sister, Vertie Burton, and Cora Gard, grantee in the (508) deed, who was then single, living on the property with the father and mother; that the mother died in 1911, the father in April, 1913; that Cora L. Gard, grantee in the deed, intermarried with her codefendant, Z. L. Mason, in February, 1913, and, after the death of the father, the other two children, A. W. Gard and his sister, Vertie Burton, instituted this proceeding against Cora and her husband, claiming that, under and by virtue of the stipulation in the deed, the title had reverted to all the children and heirs at law. Defendants contended that the stipulation was void as being in restraint of marriage, and his Honor being of that opinion, judgment of nonsuit was entered, as heretofore stated.
It is the principle very generally recognized here and elsewhere that, when an estate has been definitely conveyed to another, a condition subsequent, in general restraint of marriage, will, as a rule, be disregarded. In re Miller,
The instrument being free from ambiguity, the language expressing plainly and distinctly the meaning of the parties, there is no place for extraneous evidence in aid of its interpretation; Gilbert v. Shingle Co.,
We are reminded that in Miller's case,
Speaking to this question, in Miller's case, the Court said: "Even though the words used may, in strictness, be those of condition subsequent, if there be a limitation over to a third person, the courts are inclined to consider it as an estate upon limitation rather than one upon condition.
It seems that this fact of a limitation over is only allowed as controlling in cases of bequests of personalty. See notes to case ofCoppage v. Alexander heirs, supra, reported in 38 Am. Dec., p. 159; but both Blackstone and Kent speak of it as prevailing in devises of realty also. 4 Kent, p. 126; 2 Blackstone, p. 155. But whether made determinative in cases of real property or otherwise, and whether the facts bring the present case within the principle or not — and (509) we are inclined to think they do (see Stillwell v. Knapper,
In our case, there is no perplexity by reason of the language used, nor is there any limitation over, but, as stated, an ordinary deed with full covenants, containing a stipulation in general restraint of marriage.
We find no error in the trial, and plaintiff's judgment of nonsuit must be affirmed.
No error.
Cited: Bryan v. Harper,
