By a family arrangement and for the purpose of advancing his children in life, on 13 February, 1863, John F. Spicer, *Page 174 the father, by deeds duly executed, conveyed to his son John D. Spicer the eastern half of the land in controversy, and to Jere W. Spicer, another one, the western half. After the return of Jere from the army in 1865, the brothers exchanged their lots and John D. conveyed his eastern half to Jere by deed, and the deed to the western half made by the father to Jere having been lost before registration, by another arrangement of all parties and in pursuance of the contract of exchange, John F. Spicer, the father, executed another deed for the western half of the land to John D. Spicer. This latter deed was made 14 October, 1865, and was intended by the parties as a substitution for the lost deed of 1863.
At the time these deeds of 1863 and 1865 were executed, the (225) bargainor, John F. Spicer, was indebted to the plaintiff as the surety of one Sanders for the sum of three thousand dollars or thereabout; which debt was reduced to judgment against the principal and surety in 1869, and in 1871 a levy on and sale of all the land so conveyed and alleged to be the land of John F. Spicer, was made by the sheriff and a deed therefor was executed to the purchaser who is the plaintiff in the action and brings this suit for the recovery of the same.
On the trial it was conceded by the defendants that their deeds could not be supported as conveyances for valuable consideration, but they alleged that they were prepared to show that at the time of making them in 1863 John F. Spicer retained property fully sufficient and available for the satisfaction of his then creditors. Bat. Rev., ch. 50, sec. 3. Two issues were thereupon submitted to the jury, first, did the bargainor, when he executed the deeds, retain property fully sufficient and available for the satisfaction of his debts, and second, if so did he execute said deeds in good faith or with an intent to delay, hinder or defraud his creditors, or to gain some ease or advantage for himself.
The defendants' evidence upon the first issue was confined to the value of the bargainor's property at the time of the execution of the deeds of February, 1863; while the plaintiff contended that the inquiry should be confined to the date of the last deed — October, 1865 — upon the ground, first, that the latter deed was a new contract and could have no relation back to the date of the lost deed, because it conveyed a different estate and to a different person, the lost deed being made to Jere, while the substituted one was made to John D. Spicer, and while the lost deed contained no reservation, and the substituted *Page 175 deed contained a reservation of an estate to the grantor. The Court admitted the evidence and that is the ground of one exception.
1. If the deeds of 1863 to the two sons were valid as to creditors when made, no subsequent exchange between the sons of the (226) parts conveyed could affect their creditors, and if the substituted deed of 1865, reserved an estate so reserved became liable to execution, and instead of diminishing increased the assets of the debtor. If one of the sons consented to yield back a part of the estate originally conveyed, the creditors have no cause of complaint for that which is for their benefit.
The principal question then recurs, — does the deed of 1865 relate back for the purpose of this case to the date of the lost deed? If the grantee in the lost deed had the right in a Court of Equity to set up the lost deed and compel the grantor to execute another in its place, the grantor thereby had the right to do voluntarily what a Court of Equity would compel him to do. The general rule is that equity will not compel a specific performance of a contract not founded on a valuable consideration. But a distinction is drawn between executory contracts or promises which rest in fieri, and those agreements which are executed, the one class being enforceable only when founded on a valuable consideration, and the other requiring no consideration or only a meritorious one, as a provision for children for example. "If," says Adams, 79, 80, "the donor has perfected his gift in the way which he intended so that there is nothing left for him to do and nothing which he has authority to countermand, the donee's right is enforceable as a trust and the consideration is immaterial. Such for instance is the case where an instrument of gift has been fully executed although retained in the donor's possession." These principles we think govern our case, and authorize a Court of Equity to compel the grantor in a voluntary deed, to whom it was after execution redelivered for safe keeping, and by whom it was lost, (which is our case) to execute another of the same import. The parties have done themselves what equity would have compelled them to do under its powers (227) to enforce specific performance. Plummer v. Baskerville,36 N.C. 262; McCain v. Hill, 37 N.C. 176; Hodges v. Hodges,22 N.C. 72. The deed in this case has relation back to that of 1863.
2. The deed of 1865 from John F. to John D. Spicer, contained this clause: "It is understood and agreed that the said John F. Spicer is to retain possession of the above described lands and premises during his natural life, or so long as he may desire it for his own use and *Page 176 benefit." This clause was added after the execution at the same time and with the same formalities as the deed, and must have the same effect as if it had been incorporated in the deed at its proper place. We have before seen that if the effect of this reservation is to give a legal estate to the grantor, it is for the advantage of his creditors, and the plaintiff has no cause of complaint. But the defendants insist that it has no such legal operation at least to the extent of giving a life estate to the grantor. As, however, the defendants accepted the deed and, as the proof is, assented to all its provisions, they must be content with such estate as the deed by a proper construction conveyed to John D. Spicer. The hitch is upon the alternative words used in the reservation "during his natural life, or so long as he may desire it," the defendants contending that this language at most gives the grantor only an estate at will, which is not the subject of execution sale. A freehold for life is defined to be, — "An estate in possession, remainder or reversion in corporeal or incorporeal hereditaments, held for life, or for some uncertain interest created by will or by some mode of conveyance capable of transferring an estate of freehold, which may last the life of the devisee or grantee, or some other person." Uncertainty of duration is thus seen to be, though not an essential, yet a common property of a freehold estate. If for instance an estate (228) is granted to a woman dum sola fuit, or durante viduitate, or quamdiu se bene gesserit, or to a man and woman during coverture, or as long as the grantee will dwell in such a house, or so long as he pay a certain sum of money, or for any like uncertain time — tempus indeterminatum, as Bracton calls it — in all these cases, if it be of lands or tenements in judgment of law, the lessee has an estate for life because possibly they might and probably would be coextensive with the life of the grantee, thus constituting a distinction among estates for life, which are divisible into estates for life absolute, and estates for life determinable. Wharton Conveyancing, 41; Co. Litt. 42 (a); 1 Cruise by Greenl. 102; 2 Bl., ch. 8; Terrell v. Terrell, 69 N.C. 56.
Upon authority therefore the grantor had a life estate in the western half of the lands conveyed to John D. Spicer by the deed of 1865, and so the Court held upon the question of law reserved, and to that extent gave judgment against the defendants, and from that judgment the defendants appealed to this Court. The issues of fact were found in favor of the defendants, and the exceptions of the plaintiff taken during the progress of the trial will be disposed of in the next case, which is here upon her appeal.
PER CURIAM. Judgment affirmed. *Page 177
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