Lance v. Lance, 50 N.C. 413, 5 Jones 413 (1858)

Aug. 1858 · Supreme Court of North Carolina

50 N.C. 413, 5 Jones 413

JOSEPH LANCE, Adm’r., v. ADOLPHUS LANCE et al.

A grant or gift of chattels by deed, with a reservation of a life-estate to the grantor, or donor, will pass nothing.

Tins was an action of teovjsk, tried before Bailey, J., at a Special Term (Jnly, 1858,) of Buncombe Superior Court.

The action was brought by the plaintiff, as administrator, for the conversion of one horse, a number-of cattle, hogs, stock, farming tools, &c., left by the plaintiff’s intestate, at the place of her residence, at the time of her death, of which it was proved that the defendants were in possession immediately thereafter, and which they refused, on demand, to surrender to the plaintiff, claiming them as their own.

The claim of the defendants is founded upon a deed, executed by the plaintiff’s intestate to the defendants, conveying the property in question to them, their heirs and assigns, with this reservation : “ It is the distinct understanding and agreement, that I, the said Sarah Lance, am to have the free use of the above named property, at any, and all times, *• * * so long as I live.”

The plaintiff contended that the above- reservation took back all the personal estate mentioned, and therefore, passed nothing, and asked his Honor so to instruct the jury, but the Court declined to give such instruction, and the plaintiff excepted.

Yerdiet and judgment for the- defendants, and the plaintiff appealed.

Avery, for the plaintiff.

J. IF. Woodfin and Jtterriman, for the defendants.

Battle, J.

It is a general rule, that a conveyance of a life-estate in chattels, by deed, is a transfer of the whole interest, and no remainder can bo limited after it. So, a grant or gift of chattels, by deed, with a reservation of a life-estate to the grantor, or donor, will pass nothing, because the life-estate is the whole interest, and nothing remains for the instrument to operate upon. This rule is well established as law, in this State, as well as in England, as appears by the case, among others, of Hunt v. Davis, 3 Dev. and Bat. 42, to which we -were referred by the plaintiff’s counsel. The law has been altered by our Legislature, in relation to slaves, by the act of 1823, (Rev. Code, ch. 37, sec. 21) but remains as it was before, with respect to all other kinds of chattel property.

'Where, from the peculiar phraseology of the instrument, the benefit of an estate for life can be given to the grantor, or donor, by construing the apparent reservation into a covenant, on the part of the grantee, or donee, that the other party shall enjoy the profits of the chattels granted, or given, then, %it res magis valeat, quam gpereat, the grantee or donee shall take the property, subject to the covenant, to which the grantor, or donor, must resort .for enforcing his rights. Such was the case of Howell v. Howell, 7 Ire. Rep. 190, cited and relied on by the defendants’ counsel. No such construction can be put upon the deed now before us, because the donee did not execute the instrument, and therefore, cannot be held to have made any covenant in it. It is a clear case of conveyance of personal chattels other than slaves, with the reservation of a life-estate in the grantor, and comes directly within the operation of the general rule.

The judgment in favor of the defendants must be reversed, and a .venire de novo awarded.

Pee CueiaM, Judgment reversed.