Den ex dem. of Roberts v. Forsythe, 14 N.C. 26, 3 Dev. 26 (1831)

June 1831 · Supreme Court of North Carolina

14 N.C. 26, 3 Dev. 26

Den ex dem. of Christian Roberts v. Samuel Forsythe et al.

The word heirs is absolutely necessary in a grant, to create a fee, as well in a deed at common law, as in one operating under the statute of uses.

EjectmeNt, tried before his. Honor Judge Strawge, on the fall circuit of 1830.

On the trial, the lessor of the plaintiff claimed title tinder a deed from one James Veaaey to one William Jones,- and by other mesne conveyances to hihisclf. The defendant proved that William Jones was dead, and objected, that the deed from- Veaaey to him created only an estate for the life of the vendee. This deed was in the usual form to the habendum, when it proceeded as follows : “ to have and to hold the aforesaid land and pre- “ mises, with all houses, orchards, &c. and all other “ and singular the improvements thereon, therein or “ thereunto belonging, or in any wise appertaining to “ the said land and premises, and he the said J- F. doth ki hereby warrant and defend the said land from himself, “ his heirs, executors, administrators and assigns, and u from all other persons lawfully claiming the said land, to him the said W. J. his heirs and assigns forever.”

A verdict- was taken, subject to the opinion of the court upon the above, mentioned objection, and judgment having been rendered for the plaintiff, the defendant appealed.

Devereux, for the defendant.

Badger & W. II. Haywood, ■ contra.

Ham,, Judge

It is a position disputed hy no one, that ii it is intended to create a fee in the grantee, either by conveyance, at common law, or under the statute of uses, the conveyance must be made- to the, grantee and his heirs. If it be to the grantee, without superadding the word heirs, only a life estate passes. That appears to be the case in the deed from Veaaey.' The words heirs of the grantee, are used in no part of the deed, ex-eeptinthe danse of warranty, or the clause for covenant of warranty. If it is considered as a warranty, altho’ the warranty is made to the grantee and his heirs, it cannot enlarge the estate before granted. (Seymour’s case, 10 Rep, 97). If it is considered as a clause for quiet enjoyment, there are no words in it importing a grant or transfer of any thing, hut only a guarantee of what has been granted. Nor can the difficulty be avoided, by any fair transposition of the words or sentences in the deed. Tlie meaning of the grantor cannot he better collected from the deed than by reading it naturally. It is very probable that lie intended to convey the fee, but that intention cannot be collected from the deed.

A life estate is. not enlarged into a fee, either by a warranty in fee, or by a covenant for quiet enj oymentto the grantee and his heirs.

Tr.a CuuiAM. — Judomektreversed.