Doe on the demise of Bruce v. Faucett, 49 N.C. 391, 4 Jones 391 (1857)

June 1857 · Supreme Court of North Carolina
49 N.C. 391, 4 Jones 391

Doe on the demise of LUCIAN N. BRUCE et. al v. THOMAS FAUCETT.

Where a deed of bargain and sale, reciting its object to be to secure the premises to the sole and separate use of the bargainor’s daughter, and a consideration of one dollar, moving from the bargainee, conveyed the same to the said bargainee and his heirs in trust, for the sole, separate and exclusive use of the said daughter and her heirs, on the death of the daughter, leaving children, her heirs-at-law; Held, that the said heirs-at-law could not maintain an action of ejectment; and the legal estate still remained in the trustee.

This was an actioN of ejectment, tried before SauNDers, J., at tlie-Spring Term, 1857, of Orange Superior Court.

The lessors of the plaintiff showed that they and the defendant claimed under John A. Faucett, and produced a deed for the premises in question, being a part of lot no. 122, in the town of Hillsborough, from him to Henry Faucett, his father, dated 1st of July, 1830, and a deed from Henry Faucett back to John A. Faucett, dated 4th of July, 1831, conveying the same premises to him in fee, for the sole, separate and exclusive use of Harriet Bruce, the wife of George "W. Bruce, and the daughter of the said Henry, and her heirs, forever, excluding all right and interest of the husband, which was also ex*392ecuted bj tlie said G. "W. Bruce, the husband. They then proved that, Harriet Bruce died in 1842, and that they are her children and heirs-at-law; the eldest of whom attained to his majority a few days before the date of the demise alleged in the declaration.

The defendant contended that, at the instance and request of Mrs. Bruce, lot 122 was, on the ■ 24th of February, 1834, exchanged forlots 89 and 90, in the said town of Hillsborough which belonged to John A. Faucett, and that a deed was, on that day, executed by John A. Faucett, G. "W. Bruce, and Harriet Bruce, to Thomas Faucett, conyeying the said lot, (no. 122,) to the said Thomas, stripped of the trust, who again conveyed to John A. Faucett, and a deed was, at the same time, executed by John A. Faucett to Thomas Faucett, for lots nos. 89 and 90, who reconveyed the same to John A. Faucett in trust, for the sole and separate use of Harriet Bruce and her heirs, forever.

The defendant further showed, that on the 18th of February, 1846, John A. Faucett conveyed lot no. 122 to Joseph Allison in trust, for the payment of‘debts, and, on the 29th of Nov., 1849, he sold the same to the defendant.

All these deeds were in fee simple, but Harriet Bruce was not privily examined as to her execution of the deed in 1834, which was proved and registered after her death, only as to John A. Faucett.

It was shown that possession had been, agreeably to these conveyances, ever since they were made, and that George "W. Bruce, the husband of Harriet Bruce, had survived her, and was still living.

A verdict was taken for the plaintiff, by consent, subject to be set aside, and a nonsuit entered, in case the Court should be of opinion that the action could not be sustained.

His Honor, according to the agreement, afterwards set aside the verdict, and ordered a nonguit. Plaintiff appealed.

Graham and Bailey, for plaintiff.

Norwood, for defendant.

*393Battle, J.

The construction put by bis Honor upon tbe deed under which the lessors of the plaintiff claim, is correct. It did not pass the legal estate to the heirs-at-law of Mrs. Bruce, and of course they cannot maintain their action of ejectment. The deed is one of bargain and sale, which operates to convey the title by the force and effect of the statute of uses, 27th Hen. 8th, (sec. 1 Rev. Stat., ch. 43, sec. 4; Rev. Code, ch. 43, sec. 6.) As a deed of bargain and sale, it is governed, in this State by the same principles which were applied to it in England. It must have a pecuniary, or other valuable consideration. Blount v. Blount, 2 Car. Law Rep. 587 ; Brocket v. Foscue, 1 Hawks’ Rep. 64. Though in form, a deed of bargain and sale, yet if the only consideration is that of love and affection, it will operate as a covenant to stand seized. Slade v. Smith, 1 Hay. Rep. 248 ; Hatch v. Thompson, 3 Dev. Rep. 411 ; Cobb v. Hines, Busb. Rep. 343. If no consideration, either good or valuable, appear on the face of the instrument, or can be proved ciliunde, it will be void. Springs v. Hanks, 5 Ire. Rep. 30 ; Jackson v. Haughton, 8 Ire. Rep. 457. In the late case of Smith v. Smith, 1 Jones’ Rep. 135, other incidents, which attached to deeds of bargain and sale in England, were held to apply to them in this State. Thus, the Court .say it is settled that, a future contingent use to one unknown, or not in esse, cannot be raised by a deed of bargain and sale. It is also settled that a use cannot be raised by a general power of appointmentgiven to the taker of the first estate in the use; and the case is much stronger where the power of appointment is given to a stranger.” '

All the,se eases have been referred to for the purpose of showing that the same principles apply to deeds operating under the statute of uses herd, as they do to deeds operating under the same statute in England. There is still another rule which applies to a deed of bargain and sale in England, which we have not yet noticed. It is, that if a use be declared on'the legal estate in the hands of the bargainee, the statute will not execute it, upon the ground that it will not *394execute a use upon, a use. 2 Black. Com. 355. Thus, if A, by a deed of bargain and sale, sold land to B, to the use of C, though a valuable consideration may have passed from both B and 0, the statute would execute the first use only, leaving a trust in favor of C, which could be enforced nowhere but in a Court of Chancery. On the absence of any adjudicated case to the contrary, we do not feel at liberty to withhold the application of the same doctrine here. Indeed, from the repeated recognition, by our courts, of the principles which prevail in England in relation to this kind of conveyance, we feel bound to apply it. The consequence is, that we must hold that the ^egal title to the lot of land in question is still outstanding in the hands of the bargainee (the trustee) or his alienee, and the lessors of the plaintiff having a trust only, can have relief only in a Court of Equity.

Pee CueiaM, Judgment affirmed.