Ray v. Commissioners of Durham County

Shepherd, J. after stating the case: As the plaintiff claims under the will of Lewis Pratt it is necessary to determine what estate the said Lewis had in the land which is the subject of this action. It is insisted that he was the owner in fee-simple because the jury found in response to a part of one of the issues that W. N. Pratt “gave him the land described in the complaint, and in (the) manner therein stated as held and occupied by him.” Turning to the complaint, we find nothing which discloses the source of the alleged title; but assuming that the issue intended to refer to the replication, we are unable to perceive anything in that pleading which confers any title upon the said Lewis, except the deed executed to him in 1867 by W. N. Pratt, the owner in fee of the property. From 1855, up to the execution of the above-mentioned deed, the said Lewis, it appears, was occupying the property by the permission of the owner, W. N. Pratt; and even had he been occupying it adversely and was capable of holding it, there being no color of title, and the period of his entire possession up to his death being less than twenty years, no presumption of ownership could have arisen. It is clear, therefore, that the only title which the said Lewis had acquired was conferred by the deed executed by W. N. Pratt in 1867, and we must now inquire whether that deed was efficient to convey more than an estate for life. There being a total absence of words of inheritance, it is too plain for discussion, that at law the deed conveyed but an *172 estate for life, and there being no evidence that words of inheritance were omitted by mistake, it must follow that the deed cannot be corrected unless upon an inspection of its contents the Court should, in the exercise of its equitable power, decree that it be reformed under the principle declared in Vickers v. Leigh, 104 N. C., 248. In that case the language of the deed was quite different from the one now under consideration. There, from the peculiar provisions which were fully discussed in the opinion of the Court, it was plainly manifest that the grantor could have had no other intention than to convey an estate in fee. The same is true of the eases of Saunders v. Saunders, 108 N. C., 327 and Moore v. Quince, 109 N. C., 85. In the former the sale was by virtue of a power under a will, and it will be seen from the context of the deed that the evident purpose was to convey all of the estate of the testator; besides, the word “heirs” was used in the warranty. In the latter case the conveyance was to the trustee and his executors and administrators, and the purposes of the trust required that the trustee should take an estate in fee. Quite different is the case before us. Here there are no words of inheritance, and there is nothing whatever to indicate a purpose to convey the fee, except the simple reservation of the possession for the life-time of the grantor. This, while affording a very strong inference that a fee was intended, is nevertheless entirely consistent with a purpose to convey an estate for life, the possession of the grantee being postponed until the death of the grantor. In the cases above cited the terms of the deed were clearly inconsistent with an intention to convey only an estate for life, and this, it would seem, is the principle upon which those decisions are founded. We are very sure that it does not extend to a case like ours, and in this we are not only sustained by the older decisions, but also by the recent case of Anderson v. Logan (105 N. C , 266), in which the habendum was as follows : “ To have and to hold all of our interest in the above-mentioned *173 lot from ourselves, our heirs and all that may claim under us and our assigns forever.” There was no pleading alleging any ground for equitable relief, but the Court strongly intimated that had there been such pleading the language used would not bring the case within the principle declared in Vickers v. Leigh, supra. To hold that such a deed as the one before us warrants the Court in decreeing its correction by a simple inspection of its contents, would certainly be going far beyond ? ny of our previous- decisions, and we are not prepared to extend the doctrine beyond the limits of actual precedent. This would seem to put an end to the case, but the counsel for the plaintiff very earnestly insists that because Lewis Jenkins, the executor of Lewis Pratt, about three years after the death of his testator, purchased the land for himself of one Thomas Webb (who had about three years previously purchased the reversion of the executor of W. N. Pratt), the said Lewis Jenkins, being executor, must have held the same as a constructive trustee and according to the terms of the will. It is not easy to understand, in the absence of any evidence to show a mistake in the deed, and where its terms are such that the Court will not upon its face decree its reformation, how the said Lewis Jenkins could in any sense be a trustee. The estate of the testator in the said property ceased upon his death and no trust as to the same could have devolved upon his executor. Conceding, however, that he was a constructive trustee, so that the purchase of an outstanding title would have enured to the benefit of his cestici que trust and that there was some latent equity (such as the right to have the deed reformed), how is it possible that the defendant, a bona fide purchaser of the legal title, could have been affected therewith unless it were shown that it purchased with notice. There is no evidence of notice here. Plainly the suit to reform the deed was no notice, as .the executor of W. N. Pratt had conveyed to Webb before it was *174 instituted. Neither was the possession of Lewis Jenkins-, who purchased of Webb, constructive notice, as his possession was consistent with his legal title, and there is no evidence of any actual notice to the town of Durham, nor to its purchaser the county of Durham. There was then no constructive notice by possession of any one claiming against the legal title, and there was none by reason of the suit, for by a decree therein it had been adjudged that the deed conveyed but a life-estate; and lastly, there is an utter absence of evidence to show any equity existing in the plaintiff or anyone else, even if there had been actual notice of any claim. Assuming, then, as we have done, that the plaintiff was not estopped by the former suit, she not being a party thereto, we are of the opinion, for the reasons given, that she cannot recover. We commend the zeal of counsel in his efforts to establish the rights of his client, but if these have been lost by reason of the death of witnesses or other adventitious circumstances, we do not see how we can grant any relief, especially as against the defendant, which for aught that appears is a bona fide purchaser without notice. Affirmed.