Thames v. . Goode

Barnhill, J. In the devise to Stephen Pool and John A. Pool there is an ulterior limitation which provides that upon the death of either without an heir his share shall be the property of the surviving brother. *642 Upon the happening of this contingency — the death of either without heir — the estate is to be taken out of the first line of descent and then put back into the same line, in a restricted manner, by giving it to one, but not to all, of those who presumably would have shared in the estate as being potentially among the heirs general of the first taker, and it appears that the testator had other children and the survivor would be only one of those entitled to take, as heir, should either of the brothers die without lineal descendants. This is a circumstance which may be used as one of the guides in ascertaining the paramount intention of the testator, and, with other indicia, it has been held sufficient to show that the word “heirs” was not used in its technical sense. Edwards v. Faulkner, 215 N. C., 586, 2 S. E. (2d), 703; Brown v. Mitchell, 207 N. C., 132, 176 S. E., 258; Doggett v. Vaughan, 199 N. C., 424, 154 S. E., 660; Pugh v. Allen, 179 N. C., 307, 102 S. E., 394. Under the terms of the will Stephen Pool and John A. Pool each took a moiety in fee as tenants in common with the other, subject to be defeated upon death without issue, and a contingent remainder interest in his brother’s share. Ordinarily, when the remainder is contingent a fee simple title will not pass by the deed of the parties prior to the happening of the contingency upon which the limitation depends for, until the event has occurred, it cannot be known who will take. Woody v. Cates, 213 N. C., 792, 197 S. E., 561; Mercer v. Downs, 191 N. C., 203, 131 S. E., 575; Irvin v. Clark, 98 N. C., 437, 4 S. E. (2d), 30. But when the limitation is by way of contingent remainder or an executory devise and the person who is to take is certain, an assignment of the contingent interest, being what is termed a “possibility coupled with an interest,” will be upheld in equity upon the happening of the event and the devolution of the property. Woody v. Gates, supra, and eases cited. Thus it was held in Foster v. Hackett, 112 N. C., 546, 17 S. E., 426, that a warranty deed by one having only a contingent remainder in land passes the title, by way of estoppel, to the grantee, as soon as the remainder vests by the happening of the contingency upon which such vesting depends. See also Woody v. Cates, supra. Where a grantor executes a deed in proper form intending to convey his right, title and interest in land, and the grantee expects to become vested with such estate, the deed, although it may not contain technical covenants of title, is binding on the grantor and those claiming under him, and they will be estopped to deny that the grantee became seized of the estate the deed purports to convey. Williams v. R. R., 200 N. C., 771, 158 S. E., 473. Crawley v. Stearns, 194 N. C., 15, 138 S. E., 403, and Woody v. Cedes, supra, are to the same effect. *643 Speaking to the subject in Weeks v. Wilkins, 139 N. C., 215, 51 S. E., 909, it was said: “Where the conveyance purports, as in this case, to pass a title in fee to the entire body of land, the grantor is estopped thereafter to say it does not. The consensus of all the authorities is to the effect that where the deed bears upon its face evidence that the entire estate and title in the land was intended to be conveyed, and that the grantee expected to become vested with such estate as the deed purports to convey, then, although the deed may not contain technical covenants of title, still the legal operation and effect of the deed is binding on the grantors and those claiming under them, and they will be estopped from denying that the grantee became seized of the estate the deed purports to vest in him.” Thus it appears that under these principles of law which prevail in this State John A. Pool, by his deed to Stephen P. Pool, conveyed all of his interest in the tract of land in controversy, both present and contingent, and that both he and his grantees are estopped to deny that title thereto vested in Stephen P. Pool. The plaintiffs, grantees of John A. Pool, may not now assert that the said deed did not divest John. A. Pool of all of his title and interest in the land. Put, notwithstanding this fact, by reason of the phraseology of the deed from Stephen P. Pool to the defendant, may she now claim title to the land in controversy? Under her deed one-half interest in the land is conveyed subject to the provisions and conditions in the will of N. A. Pool. Nothing else appearing, her title to a one-half interest terminated upon the death of Stephen P. Pool without a lineal descendant. But, by reason of the deed of John A. Pool, it could not vest in him or in his grantees. Both he and they were estopped to assert ownership thereof under the terms of the will. Consequently, title to this one-half would-remain in Stephen P. Pool and descend to his heirs as such. However, this is not the full import of the language in the deed to the defendant when the instrument is considered as a whole. Her grantor- — • in whose heirs title would rest except for the deed — expressly covenants and agrees with the defendant to forever warrant and defend the title to said one-half interest against the lawful claims of all persons whomsoever, claiming the same by, through or under him. Thus the heirs of Stephen P. Pool, by the act of their ancestor, are estopped to assert title to the premises as against the defendant. At the time John A. Pool attempted to convey the land in controversy to the plaintiffs he had divested himself of all interest therein by his deed to his brother. His deed to plaintiffs conveyed nothing. Independent of this fact, he and his grantees, the plaintiffs, are estopped by the deed to Stephen P. Pool to assert title to the land. Stephen Pool, *644 as. against himself, bis heirs, and any and all other persons claiming by, through or under him, has conveyed his title' — acquired both under the will and under the deed from John A. Pool — to the defendant. Furthermore, they and each of them are estopped to assert title thereto by virtue of the language warranting title to the defendant as against them. The defendant is the sole owner of the land described in the pleadings, by estoppel at least. The judge below so concluded and the judgment entered must be Affirmed.