Note. — In the above statement of this case, there seems to be some circumstance omitted, as the deed was registered there was no absolute nesessity for a decree. The reporter thinks the necessity for a decree was occasioned by a destruction of the register in the time of the war, which rendered it impossible to procure a copy of the registered deed.
Patterson v. Patterson, 2 N.C. 187, 1 Hayw. 187 (1795)
April 1795
·
North Carolina Superior Court
2 N.C. 187, 1 Hayw. 187
Mann Patterson v. Mark Patterson, et. al.
Tenant in tail in remainder, is entitled, under the act of 1781, }.; - the fee. (¿itere, by Haywood.
Complainant’s grandfather, by deed duly executed and registered in proper time, conveyed to Complainant’s father, a tract of land of six hundred and forty acres, to him and the heirs of his body, reserving to himself, the grandfather, a life-estate therein, lie continued in possession of the land and of the deed till his death, which happened in 1786 ; and the bill stated that Mark Patterson, his executor, liad taken possession of this deed amongst the other papers found at the old man’s death, and had suppresed it. The bill was taken pro confes so? as to Mark Patterson, for want of an answer. The other Defendants answered and confessed the. deed, and disclosed strong circumstances to induce a belief that Mark Patterson had gotten the deed into his possession and suppressed it. He was the heir at law, and upon this case a doubt was conceived how Mark Patterson should be decreed to convey, whether in fee, or to him and the heirs of his body. The act of 1784 declares, that all persons who, at the time of passing this act, were seised or possessed in general or special tail, should be held and deemed to have a fee; but in this case, the donor was seised of a life-estate in the lands at the time of passing that act, and the doubt was, whether the remainder man could be said to be seised of the estate tail at that time; this remainder was vested, and had it depended upon a particular estate for years, the freehold would have passed at the time of livery and seisin, or what in *188tbjg country is equivalent thereto, made to the ídi'iner, and then the remainder man /would have been seised in tail; but in tliis rase, the freehold having not been passed to him, but remaining in the tenant for life, it seemed to some of the Court, that the donee was not seised in tail as the act requires, and then the estate tail was not converted into a fee by the operation of that act: but the other Judge being very clear, not withstanding this doubt, that the act, had vested a fee in the tenant in tail, in this case it was ruled hesitanter, that he should convey to Complainant in fee — and so it was decreed.
Sed quere — For suppose it had been to the grandfather for life, remainder to the son in tail, remainder to another in tail, this would have been a vested remainder in both ; and if the remainder man in tail is to he seised in fee, merely because his remainder is vested, then the latter remainder man is equally entitled to the fee with the former, and the operation of the act would be absurd, to vest a fee in the latter remainder man, and destroy his interest at the same time, by vesting a fee in the former; but if the meaning of the act be, that an estate tail in possession only, shall be converted into a fee, there seems to be no such absurd consequence ; the estate of inheritance, it is true, would he rendered unalienable during the lifetime of the tenant for life, and the law allows of the same thing for the convenience of families in execu-tory devises; and the same convenience may justify such a construction of the act — to that degree, that if in the case supposed, the first remainderman had died without issue, in the lifetime of tenant for life, the land might have gone over according to the limitation of the donor, and the second remainderman have become seised in fee, by virtue of the act. Whether it was not the intention of the Legislature to leave such a power of disposal in the owners of fee-simple lands, is perhaps worthy of some enquiry.