Baggett v. . Jackson

AlleN, J. The motion to dismiss was made before the introduction of.evidence, and was necessarily based on the allegations of the petition, which is fully authorized by the provisions of section 2517 of the Eevisal, allowing dower to be allotted and a partition among tenants in common in the same proceeding. The presence of the other defendant, Jackson, if not shown to be a necessary party by the petition, was immaterial except as affecting costs. Ormond v. Insurance Co., 145 N. C., 142. If, however, the proceeding was improperly instituted before the clerk, to which we do not give our assent, when it was transferred to the Superior Court in term, that court had jurisdiction to fully determine all matters in controversy. Faison v. Williams, 121 N. C., 153; Roseman v. Roseman, 127 N. C., 496; Luther v. Luther, 157 N. C., 502; Williams v. Dunn, 158 N. C., 402. Ve are also of opinion that his Honor held correctly that, although the defendant M. A. Baggett might be the owner of a life' estate in the lands described in the petition, the petitioners could havé actual partition of the remainder. The law was *30 otherwise prior to chapter 214 of Laws 1887, section 2 of which is copied in section 2508 of the Revisal, which reads as follows: “The existence of a life estate in any land shall not be a bar to a sale for partition of the remainder or reversion thereof, and for the purposes of partition the tenants in common shall be deemed seized and possessed as if no life estate existed. But this shall not interfere with the possession of the life tenant during the existence of his estate.” The first part of the section is susceptible of the construction contended for by the defendants, that it applies only to cases of sales for partition and not to actual partition, but the change in the use of terms in the statute from “a sale for partition” to “purposes of partition,” and the cautionary provision, “But this shall not interfere with the possession of the life tenant during the existence of his estate,” shows that it was intended to cover both sales for partition and actual partition, and it has been so held. Gillespie v. Allison, 115 N. C., 544. In the Gillespie case there was-a life estate in two tracts of land, and the judge of the Superior Court ordered a sale of one tract, because in his opinion this course would be beneficial to the parties, and an actual division of the other, and on appeal this Court said: “The second section provides for the actual partition of the other tract, not to interfere with the possession of the life tenant or her assignee during the existence of her .estate.” This brings us to the consideration of the effect of the clause in the deed of Charles Baggett and wife, M. A. Baggett,. to D. D. Jackson, “We do except our lifetime on said land,” and of the subsequent deed of Jackson to Charles Baggett. We have recently held in a number of eases that in the construction of deeds form must yield to substance; that the end to be attained is fo find the intent of the parties as embodied in the deed, and that effect must be given to each and every part of the deed, if this can be done by any fair and reasonable construction (Davis v. Frazier, 150 N. C., 451; Triplett v. Williams, 149 N. C., 394; Acker v. Pridgen, 158 N. C., 337; Midgett v. Meekins, post, 42), and we have applied the rule to *31 clauses in deeds very much like tbe one before us. In re Dixon, 156 N. C., 26; Thomas v. Bunch, 158 N. C., 179. In tbe last case, tbe clauses in tbe deed in tbe Dixon case and in tbe Thomas case are set out, and tbe conclusion reached by tbe Court stated as follows: “Language of similar import and almost identical witb that in tbe deed before us was considered in tbe case of In re Dixon, 156 N. C., 26, and it was there held that tbe grantee took an estate in remainder after tbe death of tbe husband and tbe wife. In this deed tbe language is, ‘and a life estate is hereby reserved by said Asa Cooper and S. A. Cooper, bis wife/ and in tbe deed in tbe Dixon case, ‘I, tbe said E. A. L. Carr, reserving a life interest for myself and wife, Sarah A. L. Carr, in tbe above described land/ and it was said in tbe latter case: ‘The reservation in tbe deed is valid, and said deed did not become effective till after tbe death of tbe grantor and his wife’; and again: ‘Construing the whole deed as written, there is here a reservation of the whole for tbe life of tbe grantor and bis wife, witb remainder in fee to their daughter.’ If there is any difference in tbe meaning of tbe clauses in tbe two deeds, there is stronger reason for saying that tbe deed in this case conveys an estate in remainder to tbe grantee, because in tbe deed in tbe Dixon case tbe husband alone was the grantor, and a life interest was reserved, while in this tbe husband and wife are tbe grantors, witb the reservation of a life estate. . . . "We conclude that a life estate was reserved to Asa Cooper and S. A. Cooper, and that Charles B. Bunch was, at tbe time of bis death, tbe owner of an estate in remainder, tbe said S. A. Cooper being then alive, and that tbe widow of said Bunch is not entitled to dower or a homestead therein.” In tbe case before us, tbe use of tbe words “we” and “our” clearly indicate an intent to reserve a life estate for tbe bus-band and wife, which should not be defeated by construction, but sustained. Tbe deed of Jackson to Charles Baggett, Jackson being under twenty-one years of age at tbe time of its execution, was not void, but voidable, and tbe law required of him that be should disaffirm it within three years after be became of age; otherwise be was bound by it as an executed conveyance. Weeks v. Wilkins, 134 N. C., 521. *32 The rule is not unjust to the infant, because be is given ample opportunity after be attains bis majority to let it be known that be repudiates bis deed, and it is necessary for the protection of purchasers, as the infancy of a grantor in a deed is not disclosed by the record. In Weeks v. Wilkins, supra, the question is fully considered and Justice Connor quotes with approval section 91, vol. 1, Dev-lin on Deeds, that, “The most reasonable rule seems to be that the right of disaffirmance should be exercised within a reasonable time after the infant attains bis majority, or else bis neglect to avail himself of this privilege should be deemed an acquiescence and affirmation on bis part of bis conveyance. The law considers bis contract a voidable one, on account of its tender solicitude for bis rights and the fear that be may be imposed upon in bis bargain. But be is certainly afforded ample protection by allowing him a reasonable time after be reaches bis majority to determine whether be will abide by bis conveyance, executed while be was a minor, or will disaffirm it. And it is no more than just and reasonable that if be silently acquiesces in bis deed and makes no effort to express bis dissatisfaction with bis act, be should, after the lapse of a reasonable time, dependent upon circumstances, be considered as fully ratifying it.” Again, on page 624, be considers the effect of the pendency of a life estate, and says: “But it is said that Mrs. Hester Weeks owned the life estate, and that, pending such estate, be bad no right of action to sue for the possession of the land. We do not think this material. His right to disaffirm bis deed was entirely independent of bis right to the possession of the land. He could easily have disaffirmed by returning the purchase money or by some other unequivocal act which would have put innocent purchasers on notice. He could have brought bis action to remove a cloud from bis title, under Laws 1893, cb. 6.” Upon an examination of the record we find no disaffirmance of bis deed by Jackson, and bold that be is bound by it. There are several exceptions in the record, which we have examined, but it is not necessary to discuss them, as the facts set out are determinative of the rights of the parties. *33 Tbe decree entered in tbe Superior Court will be modified in ■ accordance witb tbis opinion, by adjudging tbat M. A. Raggett is tbe owner of a life estate in tbe lands described in tbe petition, and, as tbus modified, it is affirmed. Modified and affirmed.