Den ex dem. Hatch v. Thompson, 14 N.C. 411, 3 Dev. 411 (1832)

Dec. 1832 · Supreme Court of North Carolina
14 N.C. 411, 3 Dev. 411

Den ex dem. Thirza Hatch v. Henry W. Thompson.

A deed to the children of A, reserving to him the use and benefit of the land, vests in him as estate for life.

This was an Ejectment, on the several demises of five persons as tenants in common- tried on the last circuit, before Strange, Judge, at Onslow.

*412It did not appear how all the lessors oftheplaintiffclaim-ed title, but the plaintiff declared for onebnndred and thirty acres of land, part of a tract of six hundred and forty acres of which one Miner Battle and three others, had been tenants in common. The plaintiff attempted to prove a partition between Battle and his co-tenants, hut failed. Battle devised his land to his wife for life, with a remainder to his daughter Susannah, who married one Lot Hum-phreys. Humphreys and wife, in the year 1808, executed the following deed to their daughter Thir&a, one of the lessors of the plaintiff:

“To all people, See. knowye, that we, Lot Humphreys “ and Susannah his wife, for and in consideration of the love, good will and affection which we have and do boar towards our loving daughter Thiraa, have given and “ granted to the heirs of her body, on the terms herein- “ after particularly described, a certain tract of land, “ which &c. (setting out the above devises and descents “ and tiie bound aides of the land) ; and by these presents do give and grant freely, the above described and de- scended land, containing one hundred and thirty acres, “ to the said Thir&a’s body heirs ; reserving particulary, “ the use and benefit of said gifted land, to said Thir<za, “ discretionary in herself, whether or not, during her “ natural life; but should said Thir&a Humphreys die, “ without leaving living heirs of her body, then the above “ gifted land shall return to her ivhole blooded brothers “ and sisters.”

The defendant objected, that Thirz<a Humphreys took nothing under this deed ; but if she did, then he objected that as she had not declared as a tenant in common, with the other co-tenants of Muer Battle, and as the deed covered land held by him in common with others, she only acquired by the deed a right to Abner’s undivided interest in the land described in the declaration, and could not therefore execute a lease which would enable her lessor to maintain this action. His Honor however, thought that the deed from Humphreys and wife to Thircza, took effect as a covenant, to stand seised for her use either for life, or- in fee; and that it enabled her to make a lease of the *413one hundred and thirty acres,which would be good against all the world but her co-tenants.

A consideration upon'aXedj inoperative as a will make it e-nur® a.tco¿e' seized,

A verdict was returned for the plaintiff, and the defendant appealed.

J. H. Bryan, for the defendant.

Gaston, contra.

Daniel, Judge.

Whether the deed accompanying the case, is good as a covenant to stand seised, is the first question to be determined. Uses may be raised upon what is called a good consideration, which is that of blood or marriage. Conveyances raising uses upon a good consideration, are termed covenants to stand seised. The consideration of blood, causes the operation of the conveyance. The words covenant to stand seised, are therefore, not essential to its validity. A convey-anee in the form of, but void as a grant, feoffment, or release, may still take effect as a covenant to stand seised, If the consideration appear, though it be not particularly expressed, yet it is sufficient to raise a use Therefore, if a man covenant to stand , seised to the use of his wife, son, or cousin, without saying in consideration of the natural love which he bears towards them, the covenant will raise the use. (Milboun v. Simpson, 2 Wils. 22. Bedell’s case, 7 Co. 40. 2 Saun. 80, 81.) A feme covert, can stand seised to a use. (1 Saun. 56.) In the case before us, Humphreys and wife in the deed, express the consideration to be, for the love and good will which they liad for their daughter, Thima Hatch. This consideration raised a use to her at least for life, by that part of the conveyance which follows, “ reserving particularly the use and benefit of said gifted lands, to the said Thima, discretionary in herself, whether or not, during her natural life; but should said Thima die, without leaving living heirs ot her body, then the above lands to return,” &c. The statute of uses executed the possession to the use, and the legal estate is as extensive as the use. It is unnecessary at present, to determine whether the conveyance would be a good covenant to stand seised to the use of Thima *414jn Jee \a{l, which by the act of 1784, ( Rev. c. 204,) would be converted into a fee-simple. As to the second . , , , question, we have always understood, that one tenant m common may bring an ejectment, declaring upon a several devise of the whole tract of hind, and recover possession suc'1 an undivided portion of it, as he proved title to on the trial. Whether the lessor of the plaintiff had been seven years in the adverse possession of the one hundred and thirty acres, under the deed from Humphreys and wife, so as to ripen her possession into a good title to the whole tract of land, does not appear; hut from what does appear in the case, she is entitled to recover the undivided one-fourth part of the one hundred and thirty acres of land mentioned in the declaration, and for that portion, the judgment below is affirmed.

One tenant in clirefor'alTtiie joint, estate, and portion'11"6 Pr°"

Pee, Ctjkiam. — Judgment aeeiemeb.