45 S.E. 363 | N.C. | 1903
This is a controversy submitted to the court without action on a case agreed. The facts material to be considered in determining the controversy are: That on 14 August, 1890, William G. Gray, Sr., executed and delivered to the plaintiffs, Nathaniel Gray, W. G. Gray, J. N. B. Gray, and John W. Gray, a deed for the real estate described therein, known as the "Moody property," which deed was duly probated and recorded.
The consideration upon which the deed was made was natural love and affection, "and also one pepper-corn to the party of (2) the first part." The habendum of the deed is in the following words: "To have and to hold the aforegranted premises . . . to the said Nathaniel Gray for and during the term of his natural life, . . . and after his death to the said John W. Gray, W. G. Gray, Jr., and J. N. B. Gray and their heirs and assigns forever, share and share alike; and if either of the last three named should die in the lifetime of the said Nathaniel Gray without leaving issue living at such his death, then his part as then held, owned, and enjoyed by him shall go to and vest in the survivor or survivors, as the case may be, and to be held, not subject *44 to the debts of either of the said remaindermen, except as to the surplus of rent as to each share over $500; the object of this deed, in part, being the support and maintenance of the said John, William G., and J. N. B. Gray, pursuant to section 1335 of The Code of North Carolina, and to that end no trustee is now appointed, to the end that upon the death of the said Nathaniel Gray a trustee, to give bond, may be appointed by the Superior Court." At the date of the execution of the said deed all of the said grantees named therein were infants except Nathaniel Gray. John W. Gray, one of the grantees named in the deed, has since died while an infant, intestate, without leaving issue, and all the other grantees are now over 21 years of age and living. The grantor, William G. Gray, is now dead. On 19 June, 1903, the plaintiffs and the defendant entered into a contract, wherein the plaintiffs contracted to sell and the defendant agreed to buy the lot known as the "Moody property," and the defendant therein agreed to pay to the plaintiffs, upon the delivery of the deed, the consideration agreed upon and set out in said contract. Thereafter the plaintiffs prepared a deed in fee simple to the defendant, signed by themselves, containing full covenants and warranties, and after duly executing the same before an officer having (3) authority to take acknowledgment of deeds, tendered said deed to the defendant, but he refused to accept the same or to pay the purchase money agreed upon. The plaintiffs are still ready to tender said deed to the defendant, who refuses to accept the same or to pay the purchase money, for that the deed tendered will not convey to or secure to the defendant an indefeasible title to the land embraced therein. The defendant appealed from a judgment for the plaintiff. The sole question presented for determination is whether the deed tendered by the plaintiffs to the defendant will convey to and vest in the defendant an absolute and indefeasible title to the land. His Honor held in the affirmative and rendered judgment accordingly, from which the defendant appealed.
The deed vests in Nathaniel Gray an estate for his life, and in the others a vested remainder in fee, subject to be defeated and vest in the survivor or survivors as to such of them as should die during the life of Nathaniel without issue living at such his death. This is clearly an attempt to limit a fee after a fee simple, which could not be done at common law. As is said by Ashe, J., in Smith v. Brisson,
The interest or estate created by the deed before us is a conditional limitation. Immediately upon the death of John W. Gray the use shifted to the surviving grantees and they became entitled to his interest. If either of the survivors should predecease Nathaniel, without issue, the entire interest or estate would, upon the same principle and by the same process, vest in the survivor. It is immaterial whether this deed operates as a covenant to stand seized, being in consideration of natural love and affection, or as a bargain and sale, as seems to be contemplated by the draftsman by the imaginary passing of the pepper-corn as a consideration. Under our statute, by which registration is declared to be in lieu of livery of seizin, the deed would operate as a feoffment. Hogan v.Strayhorn,
What restriction upon alienation may be placed upon the grantees orcestuis que trustent by this section we do not feel called upon to decide, because, in our opinion, the language of the deed does not conform to the provisions of the statute. There is no such declaration of trust in the deed as the statute requires, nor is there any limitation of the estate to the life of a child or grandchild. The provisions of the statute should be at least substantially met and complied with to create the trust with its incidents contemplated by the statute. A mere declaration that it is the object of this deed, in part, to do so, and failing to appoint a trustee, does not create such a trust as the court would enforce by the appointment of a trustee. We are of the opinion that the plaintiff's title is not affected by the provisions of this section, and their right of alienation is in no manner affected thereby. *47
Upon a careful consideration of the deed in question, in the light of the facts set forth in the case agreed, we are of the opinion that his Honor was correct in holding that the defendant acquires a fee-simple title to the lot called the "Moody property," and that the plaintiffs are entitled to a specific performance of the contract.
The judgment of the court below is
Affirmed.
Cited: Kornegay v. Miller,
(7)
