12 S.E.2d 906 | N.C. | 1941
CLARKSON, J., dissenting.
SEAWELL, J., concurs in dissent. Civil action to restrain sale of land under execution.
A temporary restraining order was issued and continued to the final hearing, when the facts were agreed upon and the cause submitted to the court for determination thereon. In summary, they follow:
1. On 1 March, 1920, J. I. Efird and wife conveyed a tract of land in Stanly County, consisting of 8 3/4 acres, to "M. E. J. Kelly and her heirs by T. D. Kelly." *123
A printed form was used in the preparation of this deed. The blank spaces were filled out by the county surveyor. In the premises the grantee is designated "M. E. J. Kelly and her heirs by T. D. Kelly . . . of the second part." In the granting clause, in the habendum and in the warranty the appellation of the grantee is, "parties of the second part, their heirs and assigns." (Italics within the quotations used to show insertions with pen and ink.)
2. On 28 April, 1930, in the Superior Court of Mecklenburg County, L. Arenson obtained a judgment against T. D. Kelly and his wife, M. E. J. Kelly, for $1,000, and duly docketed transcript thereof in Stanly County. Execution was issued on this judgment, and the present action is to restrain sale thereunder.
3. Plaintiffs are the children of M. E. J. Kelly by her husband, T. D. Kelly, and were living at the time of the delivery of the deed in 1920, except Lola F. Kelly, one of the plaintiffs, who was born on 1 March, 1922.
The court being of opinion that the deed in question "conveyed to M. E. J. Kelly a fee tail special which by our statute is converted into a fee simple," held that the plaintiffs have no interest in the property, dissolved the injunction and dismissed the action. From this ruling the plaintiffs appeal, assigning errors.
The case turns on the proper construction of the Efird deed of 1 March, 1920. This deed conveys an estate to "M. E. J. Kelly and her heirs by T. D. Kelly." At common law such an estate was a fee tail special, which is converted by C. S., 1734, into a fee simple absolute. Revis v. Murphy,
According to our previous decisions, C. S., 1739, providing that "a limitation by deed, will or other writing, to the heirs of a living person shall be construed to be the children of such person," applies only when there is "no precedent estate conveyed to said living person." Marsh v.Griffin,
The word "heirs" is primarily a word of limitation and not a word of purchase. 8 R. C. L., 1056. In Neal v. Nelson,
At common law, in order to convey an estate of inheritance it was necessary that the word "heirs" appear in connection with the name of the grantee, either in the premises or in the habendum of the deed. 2 Blk., 298; Real Estate Co. v. Bland, supra. "It is familiar elementary learning," says Ashe, J., in Stell v. Barham,
Speaking to the question in Smith v. Proctor,
An heir, according to Blackstone, is one upon whom the law casts an estate at the death of the ancestor. 2 Blk., ch. 14. "Heir" and "ancestor" are correlative terms. There can be no heir without an ancestor. Hence, there can be no heirs of the living, nemo est haeres viventis. One may be heir apparent or heir presumptive, yet he is not heir, during the *125
life of the ancestor. Campbell v. Everhart,
In ultimate effect, there is no difference between a conveyance to "A and his heirs" and a limitation to "A for life, remainder to his heirs." They both import fee-simple estates, the former by use of words of inheritance and the latter by operation of the rule in Shelley's case.Starnes v. Hill,
In Perrett v. Bird,
The deed in Harrington v. Grimes,
"So, it has been held that a deed conveying land to a married woman and her heirs `by her present husband' vests an estate in fee" — Adams,J., in Morehead v. Montague,
The reasoning in the case of Wills v. Trust Co.,
It was said in Marsh v. Griffin, supra, that C. S., 1739, "providing *126
that a limitation `to the heirs of a living person shall be construed to be the children of such person,' applies only when there is no precedent estate conveying to said living person, else it would not only repeal the rule in Shelley's case, but would pervert every conveyance to `A and his heirs' into something entirely different from what those words have always been understood to mean." And further, "the words `bodily heirs' have the same meaning as `heirs of the body,' and are words of limitation and not words of purchase." To like effect are the decisions in Worrell v. Vinson,
In May v. Lewis,
In short, the applicable decisions are all one way, with none to the contrary. The deed in question was good at common law; it is good now. It conveyed a fee tail special then. It conveys a fee simple now. To hold otherwise would be to depart from the beaten path and to inject an element of uncertainty into the settled law as it pertains to the subject of real property. It was never the intention of the General Assembly, in any case, (1) to convert sole seizin into tenancy in common, (2) to change a fee simple into a life estate, (3) to abrogate the rule in Shelley's case. A limitation "to the heirs of a living person," with which the statute alone purports to deal, is not the same as a limitation to a living person and his heirs.
The doctrine of stare decisis has as its purpose the stability of the law and the security of titles. The use of words is subject to such a variety of combinations that often the interpretation or construction of deeds, and especially of wills, is fraught with puzzling effect upon those who are required to determine their meaning. It is therefore necessary to establish rules, and equally important that they be uniformly observed, so that those who are called upon to advise may safely give opinions on titles to real property. Campbell v. Everhart, supra.
Moreover, it is not to be overlooked that while the significance of a deed, like that of a will, is to be gathered from its four corners,Triplett v. Williams,
When a grantor or testator uses technical words or phrases to express his intent in conveying or disposing of property, he will be deemed to have used such words or phrases in their well-known legal or technical sense, unless he shall, in some appropriate way, indicate a different meaning to be ascribed to them. Lytle v. Hulen,
There is nothing here to show any intention on the part of the grantor to employ the words, "and her heirs by T. D. Kelly," other than in their ordinary sense. So understood, they convey to the grantee, M. E. J. Kelly, a fee simple estate.
The judgment below is supported by the decisions on the subject, and accordingly it will be upheld.
Affirmed.