42 S.E. 579 | N.C. | 1902
The feme plaintiff, Mary Pickett, is the legitimate daughter of Waine Garrard, and the defendant W. W. Garrard is the illegitimate son of Waine Garrard. This is alleged by the defendant and admitted by the plaintiffs; and Martha Garrard was the wife of Waine Garrard and mother of Mary Pickett, but not the mother of the defendant.
On 15 April, 1887, Duane (D. W.) Garrard made and executed the following deed, to-wit: . . . "Witnesseth, that said Duane Garrard, in consideration of one dollar and fifty (196) cents to him paid by Martha J. Garrard and W. W. Garrard, the receipt of which is hereby acknowledged, has bargained and sold, and by these presents does bargain and sell and convey to said Martha J. and W. W. Garrard, their heirs, a certain tract or parcel of land in Durham County, State of North Carolina, adjoining the lands of Gaston Pickett, W. O. Cole, C. G. Marcom and others, bounded as follows, viz., containing 148 acres of land, more or less. The condition of the deed is that the said W. W. Garrard does not come into the possession of said land until after the death of Martha J. Garrard. To have and to hold the aforesaid tract of land, and all privileges *147 and appurtenances thereto belonging, to the said Martha J. and W. W. Garrard, their heirs and assigns, to their only use and behoof, forever. And the said Duane Garrard covenants that he is seized of said premises in fee, and has the right to convey the same in fee simple. That the same are free and clear from all encumbrances, and that he will warrant and defend the said title to the same against the claims of all persons whatsoever. In testimony whereof, the said Gerrard [Garrard] has hereunto set his hand and seal, the day and year above written." (Signed) D. W. Garrard (Seal). Attest: L. G. Pickett, J. B. Gates.
And Waine Garrard and Martha Garrard both being dead, the plaintiff Mary claims that said deed conveyed one undivided half of said land to the defendant and the other half to her mother, which descended to her upon the death of her mother as her only child and heir at law. And, so claiming, this action was commenced as a special proceeding for partition, but upon the defendant's pleading sole seizin it was transferred to the Superior Court in term for trial.
The defendant contends that a proper construction of this deed gave the wife, Martha, a life estate and the remainder to him in fee simple. But if it does not do this, as it was written, it should have done so; that it was the intention of the (197) said Duane Garrard to convey the land to Martha for life and the remainder to him in fee, and if it did not it was because of the mutual mistake of the parties and the ignorance of the draftsman; that it was delivered and accepted by the grantee with the understanding and belief that it did so convey said land; and if it does not, the defendant asks that it may be reformed, so as to carry out the intention of the parties and so as to convey the fee simple to him.
As the deed is written, we cannot sustain the contention of the defendant that it gives him the fee simple estate in the whole of the land after the death of Martha. It seems to us that it conveyed the land to Martha and the defendant as tenants in common, but defendant was not to have the possession and enjoyment of his part until after the death of Martha; or, in other words, we sustain the contention of the plaintiffs as to the construction of the deed as it now stands.
This leaves but one matter for our consideration (as the error committed in refusing to allow the defendant to show that he paid seventy-five cents as a consideration is harmless), and that is, whether the fact that the defendant is a bastard will deprive him of the benefits arising from a "meritorious consideration." The plaintiffs contend that it does. And it seems that the fact that the defendant is the natural son of Waine Garrard, of itself, *148
would not be a meritorious consideration. Ivey v. Granberry,
(198) The defendant claims that Waine Garrard took him to his house when he was only four or five years old, and he lived with him until his death, as a member of his family, calling Waine father and his wife mother; and these and many other facts will show that the relation of in loco parentis existed between him and Waine Garrard, and that Waine stood in the place of a father to him. He also offered to show that the plaintiff Mary had been provided for by her father, Waine Garrard, in conveying to her other lands of equal value to this. But the court, being of opinion that the fact that the defendant was the natural son of the grantor debarred him from all benefits of an equitable nature, rejected this evidence.
We have found no authority debarring the defendant from the benefits growing out of the relation of in loco parentis, because he was the natural son of Waine Garrard; and we see no reason for doing so, except it would be as a punishment for a misfortune for which he was in nowise responsible.
We are therefore of the opinion that the relation of in loco parentis furnishes a meritorious consideration upon which courts of equity will act, and the defendant had the right to show that this relation existed between him and the maker of the deed, if he could; and if he succeeded in doing this, then to show ground for reforming the deed, if he could. This, we think, disposes of all the matters presented by the appeal, and we prefer not to go further, but to leave the court, on a new trial, free to act upon such issues of fact and questions of law as may then arise.
New trial. *149
(199)