Bank of Pilot Mountain v. Snow

SchbNck, J. The question posed by this appeal is: Did Rhoda E. Smith by the deed from W. W. Cornelius and wife, Carrie R. Cornelius, dated 27 October, 1908, and recorded in Book 52, at page 182, Record of Deeds for Surry County, take a fee simple title to the locus in quo? The answer is in the affirmative. The pertinent words in the deed for construction are: “This deed made . . . by W. W. Cornelius and wife, Carrie R. Cornelius, . .•. parties of the first part, to Rhoda E. Smith and her heirs begotten by J. B. Smith, . . . parties of the second part; Witnesseth: that the parties of the first part . . . have bargained and sold, and by these presents do bargain, sell and convey to said parties of the second part and their heirs all right, title, interest and estate (of the) parties of the first (part) to a tract of land in Siloam Township, Surry County, North Carolina.” We are of the opinion that the above quoted words at common law would have created a fee tail special estate in Rhoda E. Smith, but by reason of C. S., 1734, such estate is converted into a fee simple absolute. Whitley v. Arenson, 219 N. C., 121, 12 S. E. (2d), 906; Morehead v. Montague, 200 N. C., 497, 157 S. E., 793; Revis v. Murphy, 172 N. C., 579, 90 S. E., 573. “According to our previous decisions, C. S., 1739, providing that ‘a limitation by deed, will or other writing, to the heirs of a living person shall be construed to be the children of such person,' applies only when there is ‘no precedent estate conveyed to said living person.’ Marsh v. Griffin, 136 N. C., 333, 48 S. E., 735; Jones v. Ragsdale, 141 N. C., 200, 53 S. E., 842. Nor is this section applicable ‘where there is a conveyance to a living person, with a limitation to his heirs.’ Thompson v. Batts, 168 N. C., 333, 84 S. E., 347. In other words, when the limitation is to a living person and his bodily heirs, general or special, C. S., 1734, applies and C. S., 1739, does not. A fortiori, the latter section would not apply when the limitation is to a living person and his heirs.” Stacy, C. J., in Whitley v. Arenson, supra. *17 There was allegation in an amended answer to the effect that the money of the deceased father of the defendant children was used to purchase the locus in quo, which allegation was stricken out upon motion of the plaintiff, over objection and exception of the defendants. While in their brief under “questions of law involved” the appellants propound the question whether his Honor erred in striking out the amended answer, they state no reason or argument and cite no authority in support of the exception. Therefore such exception is taken as abandoned. Rule 28, Rules of Practice in the Supreme Court. 213 N. C., 825. The judgment of the Superior Court is Affirmed.