Hendley v. Perry

WinboRNe, J. The exceptions of appellants, grouped as assignments of error, as we read them, present only this basic question : Did defendant, Percy Barrett Perry, acquire under the will of his father, Miley Perry, an alienable life estate in and to the lands sought to be sold in this action ? The trial judge held that he did acquire such life estate, and with the ruling this Court is in agreement. The contention that the clause reading: “This tract of land is to be held and owned by my said son, Percy Barrett Perry, during his natural life . . .” grants a life estate with no power to sell for his life, is untenable. The words “to be held and owned” are synonymous with the clause “to have and to hold” common in conveyancing,—that is, the habendum which defines the extent of the ownership in the thing conveyed to be held and enjoyed by the grantee. The word “hold,” as here used and as defined in Black’s Law Dictionary, 3rd Edition, means “to possess in virtue of a lawful title, as in the expression, common in grants, To have and to hold.’ ” And the word “own” as here used and as defined by the same author, means to “have a good title; to hold as property; to have a legal or rightful title to; to have; to possess.” Thus the clause “to be held and owned” as used in the Miley Perry will merely defines the extent of the ownership in the land devised to be held and enjoyed by devisee, Percy Barrett Perry. It is not a restraint upon alienation of the life estate. Thus, holding that Percy Barrett Perry acquired, under his father’s will, an alienable life estate, the challenge to the sufficiency of his deed to convey to his then wife, the plaintiff, his life estate, must fail as a matter of law. Walker v. Long, 109 N. C., 510, 14 S. E., 299; Fort v. Allen, 110 N. C., 183, 14 S. E., 685; Sydnor v. Boyd, 119 N. C., 481, 26 S. E., 92; McLamb v. McPhail, 126 N. C., 218, 35 S. E., 426. [20] In the Sydnor case, supra, it is stated that while at common law the husband and wife, being deemed one person, were incapable of contracting with each other, and it was necessary to convey to a third person, as a conduit, in order to pass the title to property from one to the other, the wife is now allowed to acquire title to property conveyed to her by the husband. And in the McLamb case, supra, Clark, ■/., stated that “Now, by virtue of the constitutional provision (Art. X, Sec. 6) it is held that a deed from the husband to the wife is valid.” It may be noted that appellants, in their brief under heading “The petitioner received no vested conveyable interest in the land by said purported deed,” say that “the grantor and the grantee (the petitioner) in this instrument were husband and wife at the time the instrument was executed, having taken the lands as tenants by the entirety under a conveyance from L. S. Brassfield, Commissioner.” However, as the record on this appeal does not show that the trial judge made any finding of fact as to the authority of the commissioner to make the conveyance or as to what estate it purports to convey, or that he made any conclusion of law in respect thereto, and the appellants not having offered any evidence in respect to it, nor taken exception to the failure of the trial judge to find the facts and state his conclusions of law on facts found, the question as to the legal effect of this conveyance is not presented on this record for decision. Hence, on the questions presented, the judgment below is Affirmed.