Tucker v. . Smith

BrogdeN, J. The plaintiff seeks to recover the school site tract of a half acre upon three theories, to wit: 1. That the deed made by Pollard to the school committee in 1877 did not contain the word “heirs.” 2. That the words in said deed “for the use and benefit of the white children in said school district and no further” created or'imposed a trust, so that when the property was abandoned as a school site, it thereupon reverted to the grantor. 3. That the board of education of Pitt County had no title to the property, and hence no authority to convey the same. It must be conceded that prior to 1879 the word “heirs” was in certain instances held to be necessary to create a fee-simple estate. However, the decision in Vickers v. Leigh, 104 N. C., 248, 10 S. E., 308, declared that the trend of judicial utterances plainly indicated a disposition to relax the rigor of the common-law rule that invariably demanded the. presence of the word “heirs” as a necessary requisite for the creation of an estate of inheritance by deed. Seeking to avoid the manifest idolatry of a word, the courts by a process of highly technical reasoning and bold transposition of words undertook to construe conveyances so as to effectuate the hypothetical intention of the grantor without primary regard for technical terms. This liberalizing tendency finally headed up in a statute, now known as C. S., 991, and enacted in 1879. Notwithstanding, if a deed was executed prior to 1879, entirely omitting the word “heirs,” or other appropriate words of inheritance, and no equity was alleged or proven, then no estate in fee simple would pass. Allen v. Baskerville, 123 N. C., 126, 31 S. E., 383; Cullens v. Cullens, 161 N. C., 344, 77 S. E., 228. An examination of the deed before us discloses that while the word “heirs” was not used, the words “and their successors in office in fee *504 simple” plainly indicate and declare that a fee-simple title was actually conveyed. Hence tbe first theory maintained by the plaintiff must fail. Nor can the second theory prevail. Church v. Young, 130 N. C., 8; Brittain v. Taylor, 168 N. C., 271, 84 S. E., 280; Blue v. Wilmington, 186 N. C., 321, 119 S. E., 741; Hall v. Quinn, 190 N. C., 326, 130 S. E., 18. Under the principles announced in the foregoing decisions, the words in the deed of 1877 “for the use and benefit of the white children in said school district and no further” merely mark out and identify the purpose of the conveyance and do not rise to 'the dignity of imposing a trust or condition subsequent, working a reversion of the title. It appearing as a fact that the property had been used for school purposes from the date of the conveyance until 1926, the school board of Pitt County was authorized by C. S., 5470 to sell the property and execute a deed therefor. We therefore hold that the judgment rendered was correct. Affirmed.