Doe on the demise of Hart v. Dougherty, 51 N.C. 86, 6 Jones 86 (1858)

Dec. 1858 · Supreme Court of North Carolina

51 N.C. 86, 6 Jones 86

Doe on the demise of SUSAN HART v. SAMUEL B. DOUGHERTY.

Where the owner of land, conveyed it to a bargainee, in consideration of certain profits and advantages, contained in a bond of even date therewith, which said bond provided, under a penalty, that the bargainor was to be supported for life by the bargainee, unto which bond, a “ nota bene” was added, to the effect, that it was not to be sold, made way with or disposed of; it was Held that this did not amount to a condition annexed to the estate by way of defeasance, but that the bargainor’s sole redress rested in the bond.

Ejectment, tried before Dick, J., at the last Eall Term of Orange Superior Court.

Both parties claimed title under Rebecca Hart, the plaintiff under a will, made by her, in 18é8, and proved, Hovem-ber, 1856 ; the defendant under a deed, which had been proved and registered, dated 4th of April, 1856, the consideration of which, was alleged to be a bond, of the same date, for the maintenance and support of the bargainor during her life. The bond in question, is as follows: “ Know all men by these presents, that I, Samuel B. Dougherty, am held and firmly bound unto Rebecca Hart, in the penal sum of $500, good and lawful money of the United States; to the true and faithful payment whereof to her, the said Rebecca Hart, her heirs, executors and administrators, jointly and severally, firmly by these presents. Signed with my hand, and sealed with my seal, this the 4th day of April, 1856.

“ The conditions of this obligation is such, that, whereas, the above bounden, Samuel B. Dougherty, hath contracted and agreed, for and in consideration of a certain lease, or quit claim, to him this day granted, by the above named Rebecca Hart, reference thereto had . will more fully show, to provide for, keep, maintain and support her, the said Rebecca’s natural life, and to see her decently buried after her death.

“How, therefore, if the above named Samuel B. Dougherty, shall have performed the above specified duties, then the above obligation to be null and void ; otherwise to be and remain in full force and virtue.

“ N. B. It is mutually and fairly understood, by both parties, that the said Samuel B. Dougherty, cannot sell, make ■way with, or dispose of, the property, mentioned in said lease or quit claim, during her, the said Rebecca Hart’s natural life.”

The deed referred to in the above instrument, in its first clause, is as follows: “ Know all men by these presents, that, I, Rebecca Iiart, of the county of Orange, in the State of Horth Carolina, land-holder, for and in consideration of the profits, benefits and advantages, mentioned in a certain bond, I hold against Samuel B. Dougherty, of the said county of Orange, bearing even date herewith, do, by these presents, grant, &c.”

This deed was attacked by the lessor of the plaintiff, on the ground of want of capacity in the bargainor, from extreme age, sickness and imbecility, and she introduced evidence, tending to show, that the defendant was poor and irresponsible for the fulfillment of the covenant of maintainance, which it is alleged he made; and it was contended, in her behalf, that it showed want of capacity in the alleged bargainor, thus to have parted with her estate to a destitute man without security, whereby it became liable to alienation and execution for his debts; her only means of redress being by legal proceedings on the bond above set forth.

In reply, the defendant insisted, that such was not the legal effect of these instruments, but that the bond, being executed at the same time with the deed, was to be considered as a part of it, and restrained the bargainee from alienation, and prevented any liability of the land for his debts. His Honor was. called on so to instruct the jury, but he declined doing so, and the defendant excepted.

Yerdict and judgment for the plaintiff, and appeal by the defendant.

Graham, for the plaintiff.

Norwood and Phillips, for the defendant.

Pearson, O. J.

The only question presented, is as to the legal effect of the addition or “ nota bene,” made to the penal bond, which was executed by the defendant, and “ the profits, benefits and advantages,” of which, are referred to as the consideration of the deed, executed by Rebecca Ilart, and having even date therewith. Is this addition, a mere covenant -not annexed to the estate, and for a breach, whereof the remedy would, be by action, or is it a condition annexed to the estate by way of defeasance, for a breach whereof the bargainor, or her heirs, might enter and defeat the estate of the bargainee and revest her original estate ?

The words used aie appropriate to the expression of an agreement or covenant, and we can see nothing to indicate that it was the intention to make a condition or defeasance, whereby the estate was to be void, if the bargainee should sell, or dispose of the property, in the life-time of the bar-gainor. Apt words of condition are used in the bond, and the bargainor seems to have relied exclusively upon it, as her security for tire performance of the stipulations of the bar-gainee in respect to her support.

There is nothing whereby either, these stipulations, or that in respect to not selling or disposing of the property, can be annexed to the estate in the land, and the bargainor seems to have depended upon the personal obligation of the bargainee in respect to the one, as well as the other.

As there is no condition, we are not called upon to express an opinion upon the question suggested, i. e., whether, when an estate in fee simple is granted, a condition, which forbids alienation during the life-time of the, grantor, is not void, as being repugnant to the nature of the estate, and inconsistent therewith. There is no error.

PeR Cueiam, Judgment affirmed.