83 N.C. 371 | N.C. | 1880
This action is for the recovery of land in possession of the defendant, who denies the plaintiff's right and asserts title in himself. The cause was referred to E. W. Pou, who made three successive reports, two of which were set aside and to the last at spring term, 1879, the defendant put in several exceptions. 1. For uncertainty in the finding in regard to the support furnished by the devisee, Harry, to his father and mother. 2. For the failure of the referee to find that such support was not afforded as required by the testator; and 3. For error in his conclusion of law that the plaintiffs were entitled to the land. The exceptions were overruled, the report confirmed, and from the judgment rendered conformably thereto the defendant appealed. The solution of the controversy mainly depends upon the construction of the following clause in the will of Shadrack Ingram, who died in 1829:
"I lend unto my grandson Henry (Harry) Ingram, two tracts of land containing one hundred acres each, lying on the south-side of Hannah's creek, being on the road and on the head of Meadow branch, joining M. Vinson, M. Allen and Hardy Lee's land, and one hundred acres below the spring branch, joining William Allen's land on the south-side of the creek, on said creek between the Watery branch and Meadow branch, joining Wm. Lee, Hardy Lee, and the Allen lands, some under one hundred acres in it, and one negro boy, named Sam, two cows and two sows. Said Harry Ingram is to take care of his father and mother and to support their bodily needs, as far as in his power, their life time, and to hold the foresaid property his *373 lifetime, and if he does take care of his parents and support them as above prescribed, and has issue, said property shall be theirs and their heirs forever. But if he die without issue, then it shall descend to my daughters and their heirs forever, after a bodily support for his father and mother their life time, if the said Harry Ingram should decease before they do."
The following facts are reported by the referee: The defendant is in possession of sixty-two acres of the devised land. At the death of the testator, his grandson Harry was seventeen years of age, and soon after Ambrose his father, and himself, built a house on the land, which was occupied by the family until 1833. In that year Ambrose and Harry contracted to sell the tract known as "Sockery place," to Nathan B. Allen, and the latter when he attained his majority in October of that year, executed a deed of conveyance therefore to Allen both understanding it to pass a life estate only. This was done at the instance of Ambrose who received in different articles most of the purchase money. Ambrose died soon after, and Harry, who while not lunatic, was of feeble mind, was not faithful in his attentions during his father's illness, but his father never suffered for the necessaries of life. About 1846 or 1847, his mother, Sally, also died. Harry lived with her till his marriage and then moved into a house on the same tract, some four hundred yards distant, and occasionally worked on her farm. She owned land, slaves and other property and had the means of comfortable subsistence. Harry did not take care of her and passed most of his time in childish amusements, but his life estate went mainly to the support and use of his parents.
Upon these facts the exceptions rest for support, and are now to be considered.
1. Upon the whole case, for want of proof of title the plaintiffs cannot maintain their action: This objection was *374
not made in the court below, nor the subject of investigation by the referee. The dispute as to title seems to have been limited to the proper interpretation of the will of Shadrack Ingram, and his ownership of the land conceded. According to the settled practice, points first made in this court, and which if taken at the trial, could have been perhaps fully answered and removed, will not be allowed, and cases on appeal are considered as prepared only to present such as were then taken and ruled. The cases relied on, Meekins v. Tatem,
2. The land is not sufficiently described in the will, nor in the complaint: The defendant recognizes the identity of the land claimed, and in his answer "admits that he withholds the possession of the said premises" and asserts title thereto in himself. How could he say this unless he knew from the complaint what lands were demanded of him and are claimed by himself? There seems to have been no controversy about the identity of the devised land as defined in the will, of which that in the defendant's occupancy forms part, and we cannot, from mere inspection of the will, undertake to determine that a description calling for various natural objects and lines of adjoining *375 proprietors, and located in the survey ordered, is too imperfect to admit of location by parol evidence.
3. The devise to the plaintiffs, the issue of Harry, upon the condition precedent that "he does take care of his parents and support them," fails for want of compliance with its requirements: We do not think the testator intended nor that the language employed expresses an intent that the limitation over to the issue of Harry was to be dependent upon his taking care of and supplying the bodily wants of his parents, since the further contingent remainder is given to the testator's daughters only in the event that Harry "dies without issue," and not also for want of the care and attention enjoined and expected. At most it would be a charge on the estate, a personal obligation on the devisee, as was held in Taylor v.Lanier, 3 Muph., 98. As was said in McNeely v. McNeely,
In Willard v. Henry,
But the defendants are in no privity with any of the parties interested under the will. They are simply wrong doers, raising issues between others who make none among themselves to quiet and confirm their own illegal occupation. *377
"When any man" says LORD COKE, "will take advantage of condition broken, if he may enter he must enter, and when he cannot enter, he must make claim, and the reason is for that a freehold of inheritance shall not cease without entry or claim, and also the feoffor or grantor may waive the condition at his pleasure." 2 Coke, 536.
The only person who could enter or make claim for nonperformance of the alleged condition precedent to the vesting of the estate in the plaintiffs are the heirs at law of the testator, and they assert no title thereto.Phelps v. Chesson, 12 Ired., 194.
There is no error, and the judgment is affirmed.
No error. Affirmed.