The appeal was dismissed at October Term, 1881, for the want of an appeal bond, but brought again to this court by a writ of certiorari, returnable to the February Term, 1882.
There were one or two exceptions taken by the defendant to evidence which we deem immaterial in the view we take of the case. But there were some exceptions to the evidence offered in regard to the identity of the land in dispute, which it is proper to consider, to-wit: 1st. That the parol evidence adduced did not identify the land, and 2nd, that there was error in overruling the objection to the testimony of T. J. Barham.
The first exception cannot be sustained, for the defendant expressly assented to the remark made by his Honor, that he could not say the deed was void on its face, for that, it might be aided by parol evidence of the identity of the land described in the deed from Perry Barham to Isham Young, and reserved his exception until he could see whether the evidence should "fit the description to the thing." It was an exception, if one at all, to the sufficiency of the evidence and not (66) to its admissibility. We think the identity of the land was unmistakably established by the uncontradicted testimony of Perry Barham and A. R. Young. At all events, their testimony on that point was sufficient to be left to the jury, and they found it in favor of the plaintiff.
As to the other exception to the testimony of T. J. Barham, the record does not disclose the ground upon which it proceeded, and as counsel assigned none, and we are unable to perceive any, it must be overruled. *Page 66
The main question for our consideration, and that upon which the case hinges, is, did the deed from Perry Barham to Isham Young convey a fee simple or only a life estate? If it conveyed a fee simple, the plaintiff could not recover; but if only a life estate, then the plaintiff was entitled to a verdict.
His Honor charged the jury, that the deed conveyed only a life estate, and in this ruling we hold there was no error.
There is no principle of law better established than that the word heirs is absolutely necessary in a deed to convey a fee simple estate. It is familiar elementary learning that the word heirs is necessary to be used either in the premises or habendum of a deed to convey an estate of inheritance. It is not essential that it should be in the habendum. Its insertion in the premises will answer, for a deed may be good without any habendum to pass a fee simple, if the words of inheritance are used in the premises, but it is most formal and usual to insert it in the habendum, as that is the orderly part of a deed in which is defined the estate or interest granted. 2 Blk., 298.
It has been held by repeated decisions in this state that the use of the word heirs in the premises or habendum of deeds at common law, or those operating under the statute of uses, is so essential that a life estate cannot be inlarged into a fee either by a warranty in fee, or by a covenant for quiet enjoyment. Roberts v. Forsythe, (67) 14 N.C. 26; Register v. Rowell, 48 N.C. 312; Wiggs v. Saunders, 20 N.C. 618, and Snell v. Young, 25 N.C. 379.
The defendant, however, contends that the rigid rule of construction maintained in these cases has been relaxed, and that deeds have been since held to convey estates in fee simple where the word heirs was not employed in either the premises or habendum, and cites in support of his position,Phillips v. Davis, 69 N.C. 117; Phillips v. Thompson, 73 N.C. 543;Waugh v. Miller, 75 N.C. 127, and Allen v. Bowen, 74 N.C. 155. But upon examination of these decisions it is found that in every case it was held that there was an habendum to the bargainee and his heirs — however confusedly mixed up with the clauses of warranty.
In Phillips v. Davis, the deed was held to pass a fee simple because there was an habendum to the bargainee and his heirs, mixed in with the clause of warranty. The deed read, "To have and to hold free and clear from all just claims, I the said J. B., doth warrant and defend the right and title of said tract of land to him, and to hold free and clear from me and my heirs, and the claims of any other persons unto him the said G. P., hisheirs and assigns. *Page 67
The deed in the case of Phillips v. Thompson, was held to pass the fee simple for a like reason. There, the words of limitation were, "To have andto hold all and singular the aforesaid land and premises, and we do for ourselves, our heirs, executors and administrators, warrant and forever defend against the lawful claim or claims of all persons whatever unto the said C. D. to him, his heirs and assigns forever." Judge SETTLE who spoke for the court said, if we strike out the words which have no sense either by themselves or in connection with others or rather if we permit them to remain dormant, we have a perfect habendum in fee.
Very similar to the proceeding cases is that of Waugh v. Miller, The conveyance was, "of all the land, together with all and singular his right and title of, in, and to the same, to the aforesaid (68) Waugh and Findly to which he (the bargainee) binds himself, his executors, administrators and assigns, to warrant and forever defend, etc., to the said W. and F. their heirs, etc., to have and to hold, etc. Judge BYNUM who delivered the opinion in this case said: The habendum and the warranty are mixed and confused. The grantor bound his heirs to the grantee's heirs, and the words may be so transposed as to give the conveyance of a fee simple both of form and substance.
The deed in Allen v. Bowen was couched in the following terms: "The understanding is that we sell all the right, title and claim that we have in the lands of Respass, deceased, unto the said William Bowen, of the second part, and by these presents hath bargained and sold and conveyed our land or right aforesaid, which we do warrant and forever defend. And we, Thomas A. Pritchett and Elizabeth his wife doubt for themselves, their heirs, executors, administrators and assigns, forever the land to the said William Bowen, his heirs, executors, administrators and assigns forever clear of all encumbrances whatever." Judge BYNUM who also delivered the opinion in this case said: "The confusion here as in that case (referring to the case of Phillips v. Thompson,) is produced by the attempt to incorporate a clause of warranty with the habendum."
The deed in our case is much more informal and defective than even the deed in the last case. It reads, "hath granted, sold and conveyed unto said Isham Young a certain tract of land lying and being in Wake County, etc. And the said Perry Barham doth agree with the said Isham Young his heirs and assigns to warrant and forever defend the right and title of the said land to the said Isham Young from any and all lawful claims of any person or persons whatsoever." *Page 68
This case it will be seen is notably distinguishable from those (69) relied upon by the defendant's counsel, in that, there are no words of inheritance in the premises, the habendum, if there be one, or the clause of warranty. And no case, we presume, can be found where a fee simple has been held to be created by a deed without the word heirs. In the clause of warranty in this deed, the grantor agrees with the grantee and his heirs and assigns to warrant and defend the right, etc., to the said Isham Young, but not to his heirs. There is no transposition of the words which will warrant the construction that the deed conveyed a fee simple. It may have been so intended by the parties, but we are unwilling to make, by a strained construction, any further relaxation of a rule of law so long and so uniformly established.
Concurring as we do in the correctness of his Honor's charge, the judgment of the court below must be affirmed.
Being of opinion with the plaintiff upon the merits of the case, we have deemed it unnecessary to discuss or to decide the preliminary motion made by the defendant's counsel.
No error. Affirmed.
Cited: Batchelor v. Whitaker, 88 N.C. 354; Staton v. Mullis, 92 N.C. 627;Bunn v. Wells, 94 N.C. 69; Ricks v. Pulliam, 94 N.C. 230; Andersonv. Logan, 105 N.C. 270; Allen v. Baskerville, 123 N.C. 127; Real EstateCo. v. Bland, 152 N.C. 228, 229; Cullens v. Cullens, 161 N.C. 347;Whichard v. Whitehurst, 181 N.C. 84; Whitley v. Arenson, 219 N.C. 124.