Holmes v. . Holmes

Ruffin, J. The first exception, we consider, is the one taken to the judgment rendered in the court below. It is insisted that inasmuch as no words of inheritance are used in declaring the trust in favor of the plaintiff Sarah, she took but a life estate, and it was error therefore to have adjudged a conveyance to her in fee from the defendants. As a general proposition it is unquestionably true, that in dealing with equitable estates, the courts of chancery adopt the same rules of construction that the courts of law do, with reference to legal estates ; but to this there are some few exceptions, and one is, that the use of the word “ heirs,” is not always necessary, in order to give to an equitable estate the character of inheritability, if it appear from the context that such was the clear intention of the party declaring the trust. 2 Wash, on Real Property, 186. In Lewin on Trusts, 44, it is said that to declare a trust, one need only to make his meaning plain, as to the interest he intends to give, without strictly regarding the technical terms of the common law, in the limitation of legal estates j and as instances, it is remarked, that “ an equitable fee may be granted without the word “ heirs,” and an equitable entail without the words “ heirs of the body.” Looking to the deed to the trustees in this case, we think it sufficiently appears to have been the intention of the maker, Campbell, to confer upon the plaintiff an equitable estate in fee. The. language of the instrument is — “to W C. Bettencourt, &c.,and their heirs, or the survivor of them, in trust for Sarah Moore.” The whole estate and interest *208 of the bargainor passed to the trustees, and everything they took was charged with the trust in favor of the plaintiff. The trust was certainly intended to be coextensive with the legal estate, and as the one is in fee, so was the other intended to be, and so must we consider it to be. The next position assumed for the defence is that the plaintiff, in assenting to the sale by the trustees to Worth in consideration of the emancipation of his slave, her sister, had parted with her trust estate; and this it is insisted she could do by parol, for that, as a trust estate may be created by parol, so may one be disposed of in that manner. We were furnished with no authorities in support of this position, and so far as our researches have gone, they are all against it. In Maxwell v. Wallace, Busb. Eq., 251, a contract for the sale of an equitable interest in land, was held to be within the statute of frauds, and void unless in writing; and so too in Simms v. Killian, 12 Ired., 252, and Rice v. Carter, 11 Ired., 298. In fact, all the authorities, whether taken from the text-writers or from adjudged cases, concur in saying, that wherever anything is done, which substantially amounts to a transfer, or parting with an interest, whether legal or equitable, in lands, the contract is for the sale of “an interest in or concerning lands,” and comes within the statute. The distinction which obtains between such a transfer and an original declaration of a trust is clearly pointed out by Peakson, C. J., in Shelton v. Shelton, 5 Jones Eq., 292, and by the present Chief Justice in Shields v. Whitaker, 82 N. C., 516. But apart from the statute of frauds, the feme plaintiff was covert at the time of the alleged assent to the sale of the property, and incapable of making any contract, either parol or written, that could affect her estate in the land without a strict compliance with the statute which prescribes the manner in which the deeds of married women shall be executed and authenticated. Her contract then was void, *209 and so absolutely void, that no equity of any kind can arise against her under it. In the very recent case of Scott v. Battle, 85 N. C., 184, this whole question was discussed, and it was held that a married woman, who had agreed by parol to sell her lands and had received the purchase money and spent it, could not be required to refund it, before taking back her land. To hold otherwise it was thought, would be to nullify the statute regulating the contracts of a married woman, and to enable that to be done indirectly, which the law in express terms forbids to be done directly. This renders it unnecessary to consider the point as to the contradictions in the verdict. For whether she assented to the sale or not, and whether her assent was founded on a valuable consideration or not, were all matters perfectly immaterial, and their solution by the jury, in no wise tended to a disposition of the controversy between the parties to the action. The deed to the trustees, besides that it conferred upon, them no power to sell the land, contained a clear declaration of a trust in favor of the plaintiff Sarah, and that deed was-referred to in the recitals of all the subsequent conveyances. And it is a well established rule, that where a purchaser in the necessary deduction of his title must use a deed which discloses an equitable title in another, he will be affected with notice, and will be bound by any trust that rested upon him from whom he purchased. Thompson v. Blair, 3 Mur., 583. The defendants were properly declared to be trustees for the plaintiff, and we do not feel at liberty to disturb the judgment rendered in her behalf. No error. Affirmed.