Williams v. . Biggs

Walker, J., after stating the case: It will not be necessary to discuss the several questions argued in the brief as to when the estates of the sons became absolute. They undoubtedly acquired under the terms of the will vested interests which were subject to be divested upon the happening of the contingent event mentioned in the will. Starnes v. Hill, 112 N. C., 1; Whitesides v. Cooper, 115 N. C., 570; Whitfield v. Garris, 134 N. C., 24; Hobgood v. Hobgood, 169 N. C., 485, and cases cited at p. 489. It is clear, as the presiding judge decided, that however we construe the devise, whether as vesting the estate absolutely in the survivors at the death of James A. Roberson, who died without issue, or as creating successive survivorships, the deed tendered by the plaintiff, who derived his right and title under a deed executed by the three surviving brothers for the land, will convey a good title to the defendant. This is true, because every one who could take an interest under the devise in the will has joined in the deed to certain grantees under whom the plaintiff claims title by mesne conveyance, and it is the same as if they had conveyed directly to the plaintiff. In any view of the case, the estate was *50 vested 'absolutely either in all the surviving brothers, or ultimately will so vest in some one or more of them. If any one of them should die, leaving heirs, his share would descend to such heirs, who, though, would be bound by his deed as the warranty in the deed of the ancestor will conclude and estop or rebut the heir who takes by descent. Of course, where the heirs, issue or children, are so designated as to take by purchase, under the terms of the will, there is no estoppel or rebutter as they do not take from their ancestor by descent, but directly from the devisor as purchasers. Whitesides v. Cooper, supra. But whether all the sons die without issue or some die without leaving issue, and others die leaving issue, all parties have joined in the deed who have or will have the title to the land. We are of opinion that the plaintiff has derived his title from parties who, if not owners of the land at the time they conveyed it to him, will eventually become the owners in fee simple absolute, and therefore that all interest therein has passed to him. It follows that the deed tendered to the defendant will convey to him a good and indefeasible title. Hobgood v. Hobgood, supra, citing Kornegay v. Miller, 137 N. C., 659. In Hobgood’s case it was said by Justice Hoke: “In Kornegay’s, as in this, the ultimate devisees were ascertained and designated by name, and they having the contingent estate, it was held that they could convey it, and their descendants or heirs, having to claim through them, were concluded by the deed of the ancestors,” citing also Bodenhamer v. Welsh, 89 N. C., 78. The decision of the learned judge was correct. Affirmed.