Vickers v. . Leigh

Avery, J. — after stating the facts: The trend of judicial decisions for years has been toward relaxing the rigor of the common law rule, that, without words of inheritance, no estate of greater dignity than for life could be created by deed. While devises were held, after the statute of wills, to be but a species of alienation, the Courts construed them more liberally than deeds, and where, without the use of the -word “ heirs,” as by inserting the word “ forever,” the testator indicated an intent to pass an estate in fee, it was held, on the ground that testators were generally inops consilii, that the instrument should be so interpreted as to effectuate his purpose. Then followed the liberal principle in the Act of 1784 (The Code, §2180), that a devise of real estate to any person should be held to be a devise in fee, unless it plainly appears from some part of the will that the testator intended to convey an estate of less dignity. The liberal tendency of the age in reference to deeds culminated in the Act of 1879 (The Code, §1280), providing the same rule of construction for deeds as for devises. But, prior to the passage of that statute, this Court had, in numerous cases, held that, where the word “heirs” was inserted out of the habendum in a deed, unless it plainly appeared to be a part of the covenant of warranty, or of quiet enjoyment, the deed would be construed by transposing it to its proper place in order to create an estate in fee, and this ruling was predicated upon the *258 idea of carrying out the apparent intent of the grantor as nearly as the rales of law would admit. Phillips v. Thompson, 73 N. C, 543; Phillips v. Davis, 69 N. C., 117; Hodges v. Fleetwood, 102 N. C., 122. Citing Coke and Kent, Judge Daniel, in Armfield v. Walker, 5 Ired., 580, says: “ It is a rule of law that, if two construction's can be placed on a deed, or any part of it, that shall be given to it which is most beneficial to the grantee.” The idea of giving effect to the grantor’s purpose, gathered from every part of the deed, led this Court, in administering the principles of equity, to announce the doctrine that when the Court was entirely satisfied from the declared purpose and nature of a deed, and the context of that portion where the word “heirs” would naturally belong, that it was the intention of the grantor to convey a fee-simple, and the omission was an oversight, there was a plain equity to have the mistake corrected. Rutledge v. Smith, Busbee’s Eq., 283. The facts, appearing from the face of the deed, are very clearly indicative of the intent of Nathan Ellis the grantor. After reserving an estate for the joint lives of himself and wife he conveys the remainder to the two children, at that time the only issue of his marriage with his said wife, but with a proviso that any child thereafter born of the marriage with her should take an equal share with the two already in esse. The deed further provides, that Sullivan Leigh, the brother of his wife (under whom the defendants claim), should, as guardian of the children, have authority incident to that relation over the land till they should arrive at the age of twenty-one, when they would “ be entitled to take possession of said land and premises free from all costs.” 1 It is most unnatural to conclude that a father, having provided a maintenance for life for himself and wife, and attempted by deed to appoint a guardian for the two children, who are the only issue of the marriage, should con *259 vey to them simply a life estate, limited upon that reserved for himself and wife, and leave the remainder in fee-simple undisposed of, when he seemed to be making permanent provision for the present and prospective issue of his marriage after the death of his wife and himself. So, looking to the nature of the deed, and the plain purpose of providing for his infant children after the death of his wife and himself, that is apparent from its terms, we must declare in furtherance of this manifest purpose, ascertained from the wording of the deed, that there was a mistake of the draughtsman in failing to insert after the names of the said children, in the deed above mentioned, the words, “ and their heirs forever. It is not necessary for us to consider all the exceptions relied upon by the parties in presenting their respective appeals in this Court. His Honor should have held, upon an inspection of the deed executed by Nathan Ellis, February 16, 1824, and admitted to have been properly proven and registered, that it should be corrected as already indicated. It would follow that the plaintiffs were entitled to judgment that the deed be reformed as directed, and for costs of action. The fact that his Honor submitted the first and fourth issues to the jury, involving questions of law, does not impair the rights of the defendants, as the jury decided them correctly. A large number of exceptions relied on by the defendants become immaterial now, for the reason that they related to testimony offered to prove, by parol, the mistake that we have held is shown with sufficient clearness by the language of the deed. Exception numbered twenty, based upon the refusal of the Court to give instructions asked by the defendants, and numbered four and eight, or to tell the jury, as requested at the close of the evidence, that the plaintiffs had not offered sufficient testimony to support a finding that there was a mistake in response to the first issue, are of this character, though the Judge did *260 tell the jury, in substance, what was asked, and disregarded the finding in response to the first issue after verdict. The verdict on the second issue was in favor of the defendants, and they have not suffered by reason of any error in the admission of testimony tending to establish the parol trust. It is, therefore, unnecessarj^ to consider objections to its competency, and this disposes of exceptions numbered from 9 to 19, both inclusive, and the exceptions to the refusal of the Court to give instructions Nos. 4, 5, 9 and 10, asked by the defendants. The first objection grew out of the competency of a juror because he was interested, as a creditor, in a fund for which W. W. Fuller, as receiver, had brought suit. The juror was not a party to an action, pending and at issue in Court, and, therefore, did not come under the description in the disqualifying statute. The exception will not be sustained. The objection to the admission of the deeds read in evidence was not insisted upon. If it had been, however, we see no reason for excluding them when first offered, as at that preliminary stage his Honor could only pass upon the question whether the deeds had been proven and registered, as required by the statute. The relevancy of such deeds, generally, cannot be made manifest till a later period in the development of a case. The deed from Nathan Ellis to John Hinton Ellis and Anne Maria Ellis, executed February 16, 1824, having been duly proved and registered, was, of course, competent, as the whole controversy depended upon the construction given to it. There was no error in admitting the other deeds introduced to show that the defendants claimed title from Nathan Ellis, the same source from which plaintiffs derived, title. These deeds were offered as a foundation for attaching a parol trust to the purchase of Sullivan Leigh; but, as the jury found, in accordance with the instructions given by the Court, that there was no agreement on his part to purchase for Nathan *261 Ellis, the admission of the testimony has wrought no injury to the defendants, and will not avail them as ground for asking a new trial or a judgment on the verdict. We conclude, therefore, that in defendants’ appeal there was no error. In plaintiffs’ appeal there was error, and the judgment must be reversed. The plaintiffs are entitled to judgment declaring and correcting the mistake in the deed, as pointed out, and for costs. Error on plaintiffs’ appeal; on defendants’ appeal, no error.