Marsh v. . Marsh

Adams, J. The meaning of clauses in a conveyance of real property providing for the support or maintenance of a person is usually determined by a construction of the entire instrument. One clause may be a personal covenant, another a charge on the rents and profits of the land, and a third a lien or charge on the land itself. Bailey v. Bailey, 172 N. C., 671. It appears in the case before us that H. C. Marsh not only accepted the deed, but signed it under his seal; that he is bound by the provisions of the deed is therefore not in dispute. In re Peaden, 199 N. C., 486; Peel v. Peel, 196 N. C., 782. The question is whether there are clauses in the deed which create a lien or charge upon the land. We are of opinion that there are and that there is no error in the record. Many of our decisions have dealt with exceptions similar to the one interposed in this case, and to some of them we refer as authorities in support of the judgment. In Aston v. Galloway, 38 N. C., 126, the devise in part was as follows: “I give and devise the land, after the death of my said wife, to my nephew J. A. and his heirs, he paying to my two other nephews E. and G. A. as they respectively arrive at the age *749 of twenty-one years, tbe sum of £100 each.” In the opinion the Court said: “Was the £100 given to the plaintiff as is stated in the case, a charge on the land? We think it was an equitable charge, that is, that in this Court the land is to be regarded as a' security for it. In the case of Abrams v. Windup, 3 Russ., 35, a testator devised lands to Joseph Bulmer, for paying his son Thomas Bulmer £50, when of the age of twenty-one years. The Master of the Eolls was of opinion that this was a devise of the fee to Joseph Bulmer, charged with the payment of the £50 to his son. In Miles v. Leagh, 1 Atk., 573, testator devised lands to his wife for life, remainder to his son E. in fee; and he gave to A. a legacy of £150 to be paid in twelve months after his son E. should come to enjoy the premises. The legacy to A. was held to be a charge, and it was decreed with interest from the death of the testator’s wife, against E’s son and heir. In Ladd v. Garter, Prec. Chan., 27, a devise of lands to A. for life, remainder to such child or children as should be living at his death and to their heirs, A. paying £40 to E. This was a charge, not only on A’s estate for life, but also on the remainder. In the case now before us, the words immediately following the devise to John Aston are, ‘he paying to my two nephews £100 each, at their ages of twenty-one years: But if it should so happen that they should be of age before John shall be in possession of the said plantation and lands, in that case he is not bound to pay under two years from the day of his taking possession.’ It seems to us, that the £100 was not intended by the testator, to be a personal debt on the devisee, in remainder only; but it was to arise out of the land, after the devisee should get into the possession of the same, and he be able to make it out of the rents and profits — therefore it was a charge upon the land.” A devise to L. provided he pay E. three hundred dollars is a charge on the land. Woods v. Woods, 44 N. C., 290. The same construction was given the following clause in deed of conveyance: “For the consideration of $200 and the faithful maintenance of T. L. and wife P. L.” Laxton v. Tilly, 66 N. C., 327. So as to a clause “reserving also the care and support” of the grantor’s daughter. Wall v. Wall, 126 N. C., 405. In Outland v. Outland, 118 N. C., 138, the provision was this: “In consideration of the property I have given to Elijah and Cornelius, they are to have the care of and support Thomas, and it is my will that he should have his choice which of them he will live with, and the other pay half the expense.” It was held to create a charge on the land. The following additional cases may be consulted: Misenheimer v. Sifford, 94 N. C., 592; Carter v. Worrell, 96 N. C., 358; Hunt v. Wheeler, 116 N. C., 422; Allen v. Allen, 121 N. C., 328; Fleming v. Motz, 187 N. C., 593; Cook v. Sink, 190 N. C., 620. *750 It is stated' in. the judgment that the appellants took their alleged title with notice of the charge upon the land. Outland v. Outland, supra; Fleming v. Motz, supra. As pointed out in the judgment the deed to H. C. Marsh was executed to effect a family settlement, the conditions and terms being a part of the consideration. The .provision for the support of his parents and afflicted sister is in' effect a charge or equitable lien on the land. No error.