Fort v. . Allen

Shepherd, J.: We are unable to perceive any merit in the first two exceptions. It has been decided that a husband may convey directly to his wife (Walker v. Long, 109 N. C., 510), and it is clearly unnecessary to the validity of the conveyance that it should be made in consideration of her support and maintenance. This being so, it must follow that D. F. Fort, having conveyed his interest in the land in controversy, had no authority to bind Ms grantee by a submission to arbitration, and even had he possessed such authority, an oral agreement to arbitrate could not be enforced as to real property. The third exception presents the main point to be determined, and this is whether the share of N. D. Allen, the feme defendant, as tenant in common in the said land, has been allotted to her. If she is estopped frorn.claiming more than the forly-four acres of which she has been in the exclusive possession since 1875, then the plaintiffs, having acquired the interests of the other tenants in common and the life-estate of the widow, are the owners of the remaining part of the land, and as the eighty-three acres — the subject of this action — is a part thereof, it must also follow that they are the owners of the same. There was no partition by judicial proceedings, but it is found by the referee that, in 1874 or 1875, the said defendant and her husband took exclusive posses *190 sion of the said forty-four acres under ah oral agreement that it should be the full share of the feme defendant. It is also fouud by the referee that the “said forty-three acres, without accountability for rent to the life-tenant, Nancy, was fully equal in value to one-sixth of the remainder interest in the whole tract.” It is well settled that a parol partition of lands is a contract within the purview of the statute of frauds and is not binding. Medlin v. Steele, 75 N. C., 154. If, then, nothing further appeared than the oral agreement, and the possession under the same, it would be clear that the feme defendant would not be estopped, and that she could still assert her claim as tenant in common with the plaintiffs. It is found, however, that afterwards, in 1888, the said defendant accepted a deed for the forty-four acres from all of the parties in interest, except the plaintiffs, who are infants; and it is further found that the deed declared that the said forty-four acres was “that portion of the David Fort land allotted to N. D. Allen,” the feme defendant. The use of the word “allotted in itself implies a fall partition of the land. To allot means “to set apart a thing to a person as his share, as to allot a fund or land.” Anderson Law Dict., 51. So apart from the express agreement fouud by the referee and the fact that the land is fully equal to her share, we have the feme defendant occupying the land under a deed which, in effect, declares that the land conveyed therein is her share of the whole tract. The plaintiffs by this suit affirm the said conveyance and the said defendant, being still in the exclusive possession of the forty-three acres, intends, for aught that appears, to hold the same under the above-mentioned deed, and at the same time insist that she is entitled to five specific additional acres out of the remaining part. If she could claim against the implied terms of the deed, we are unable to understand'how she would be *191 entitled to any specific part of the land, as she would then be a tenant in common in the entire tract. As we have seen, the oral agreement would not work an estoppel and especially as against a feme covert, but a feme covert has no more right than any other person to claim the exclusive possession of land under a conveyance, and at the same time repudiate the recited terms upon which it is made. It is well established that a grantee who accepts a deed poll is bound by its terms or qualifications. Maynard v. Moore, 76 N. C., 158; Long v. Swindell, 77 N. C., 176. The principle is well stated in Hutchinson v. Railroad Co., 37 Wis., 602, in which it is said that “it would be strange if the defendant could accept the grant freed from the provisions qualifying the grant; take the entire estate without the limitations of the estate; claim under the contract without being hound by its terms.” Now, it is true that it is not every recital that hinds; but without entering into a discussion of the doctrine of recitals, abounding as it does in many refinements and nice distinctions, it is sufficient to say, for our present purpose, that where it is the intent of the parties to place the existence of a fact beyond question or to make it the basis of the contract, the recital will be effectual, and neither party will be permitted to deny it. 2 Herman on Estoppel, § 636. This view is sustained by Henderson, C. J. (Brinegar v. Chaffin, 3 Dev., 108), who says that “recitals in a deed are estoppels when they are the essence of the contract; that is, where unless the facts recited exist, the contract, it is presumed, would not have been made.” It is manifest that when the deed to the feme defendant was executed, the parties intended that it should be an allotment to the grantee of her share in the lands of D. F. Fort, their ancestor. It was the basis of the contract, and without such an undertaking it is fair to assume that the conveyance would not have been made. Such, we think, is the necessary inference to be drawn from *192 the recital in the said deed. If this be true, it would form a material part of the contract, and while the grantee, being a feme covert, would not be bound by the deed and could repudiate the entire transaction, yet it would offend every principle of equity and good morals to permit her to enjoy its benefits, and at the same time deny its terms or qualifications. The effect of the partition of co-tenants by deed is to work an estoppel as to the extent of the lands thus set apart and allotted in severalty (Harrison v. Ray, 108 N. C., 215), and it must be attended with the same result in the present case. It was the right and privilege of the feme defendant to relieve herself of the estoppel by disclaiming to hold the land in severalty under the said conveyance and offering to throw the same into the “hotchpot” in order that there might be another partition. She had ample opportunity to do so in this action, but no such disposition is manifested on her part, and we are therefore of the opinion that as she has elected to hold under the deed, she must be bound by the estoppel growing out of its recitals. We place our decision upon the principle of the cases of Burns v. McGregor, 90 N. C., 222; Walker v. Brooks, 99 N. C., 207; Hinton v. Ferebee, 107 N. C., 154, and other similar decisions. See Womack’s Digest, 1296. The cases of Towles v. Fisher, 77 N. C., 437; Weir v. Page, 109 N. C., 220, and Farthing v. Shields, 106 N. C., 289, cited by counsel, are, under the views we have taken, inapplicable to the facts before us. We regret that, by reason of the neglect of the defendants to present the testimony in a proper manner, the Court is precluded from passing upon the exceptions addressed to the findings of fact. We have therefore been confined to the report of the referee, and upon his findings we must conclude that the feme defendant is estopped from claiming any other part of the land than that which she holds under the conveyance above mentioned. It must therefore follow *193 that the plaintiffs are the owners of the remaining land of which the eighty-three acres, the subject of this action, is a part. This is also true as to the five acres claimed by the defendants, it being included in the said eighty-three acres. As to the improvements, the referee finds that the rental value of the land and the damage by the cutting of timber, etc., during the possession of the defendants, are equal or exceed in amount “the sum whereby said land is enhanced in value by said improvements.” Upon this finding it is clear that his refusal to allow anything for the improvements should be sustained. Upon a careful consideration of the case, as -presented for review, we are of the opinion that the exceptions of the defendants must be overruled, and the judgment should be Affirmed.