(dissenting). The determination of the controversy between the plaintiffs and defendants requires the consideration of the act of 1827, now Rev., sec. 1581, which is as-follows:- “Every contingent limitation in any deed or will, made to depend upon the dying of any person ¡without heir or .heirs of the body, or without issue or issues of the body, or without children or offspring.or descendant or other relative, shall-be held and interpreted a limi-t-ation to take effect when such person shall die, not having such heir, or issue, -or child, or offspring, or descendant'or other.relative (as the case may be) living at the time leath, or born to him within teii lunar months thereafter, unless the inte ¡ntion of such limitation be otherwise, and expressly and plainly declare 1 in the face of the deed or will creating it: Provided, that the rule of construction contained in this section shall not extend to any deed oi ■ will made and executed before .the fifteenth of January, one thousand eight hundred and twenty-eight.”
If the time of dying without issue is to be referred to the death of John H. and Clem Jowers during the existence of the life estate of the .mother, Nancy Patterson, the title of the defendants is good, because John D. and Clem survived the life tenant, and neither died during her life leaving no issue, but if the time is as of the death of John D. and Clem, the title of the defendants is defective unless protected by the doctrine stare decisis, as John died leaving no issue. - -
The decisions dealing with the statute and with the rule prevailing-prior to its enactment, running from Bryant v. Deberry, 3 N. C., 356, to Kirkman v. Smith, 175 N. C., 579, and including at least seventy-five cases, are collected and discussed in the learned and discriminating briefs of plaintiffs and defendants. I have devoted much time to their consideration, with the result that they are found to be in such conflict that they cannot be reconciled, and I have concluded that it is the better course to announce the principles that I believe to be controlling rather than attempt a classification and reconcilement of authority, which I do as follows:
1. At common law a limitation contingent upon death without issue was held to be an indefinite failure of issue and was void for remoteness.
.2. In the. application of the principle, and i-n order to avoid as far as possible defeating the intent of the grantor or testator, if there was in the deed or will an intermediate, period such as the termination of a life *459estate, a period fixed for division, arrival at full age and tlie like, the courts field tfiat “dying without issue” was referable to this intermediate period. This is the rule of construction announced in Hilliard v. Kearney, 45 N. C., 221, and it has been followed many times since the act of 1827, although not always with the construction-of the statute under consideration, .
3. The statute of 1827 changed the principle making the limitation void for remoteness, and abrogated the. rule of construction referring the “dying without issue’.’ to an -intermediate period. I have reached this conclusion, being conscious that it is at variance with what has been Said in several.recent decisions of this Court, but it is in harmony with Harrell v. Hagan, 147 N. C., 111; Kirkman v. Smith, and other cases.
4. The statute applies to all limitations contingent upon dying without issue, and is not restricted to those where there is no intermediate estate. The language is “Every contingent limitation,”.and there is no exception from its operation. ,
5. It also establishes a new rule of construction, and fixes as the time for dying without issue “when such person shall die,” in this case John and Clem or one of them.
6. This rule is obligatory on the courts and must be observed, unless a contrary intent is “expressly and plainly declared in the face of the deed or will,” and we find no such contrary intent in the .will before us.
7. Applying, these principles, the- plaintiffs would be entitled to recover,. but for the doctrine that the laws in force at the time of making, a contract, as interpreted by the highest courts, .enter into and become a part of the contract, and property rights acquired thereunder cannot be divested by a subsequent change of decision, a doctrine peculiarly applicable to real estate titles.
At the time title to the land in controversy was acquired by those under whom the defendants claim the latest decisions of the Court dealing with a limitation contingent upon death without issue were Burton v. Conigland, 82 N. C., 99, and Murchison v. Whitted, 87 N. C., 465, and in both the doctrine of Hilliard v. Kearney was applied, and under them the title of the defendants would be good, because John and Clem Jowers survived the life tenant, and neither died leaving no issue during her life.
The case of Hathaway v. Davis, 84 N. C., 96, relied on by the plaintiffs, .does not weaken the authority of these decisions because in that case the person upon whose death .the contingent limitation depended left issue.
If it can be supposed, as the plaintiffs contend, that the learned judges who concurred in these decisions — Smith, Ashe, Dillard in the first, and Smith, Ashe, Ruffin in the second — were inadvertent to the *460.act of 1827, an important statute affecting the title to land, which had been in force more than fifty years when Burton v. Conigland was decided, and which had been frequently referred to in the reported cases, it would seem to be unreasonable and unjust to demand greater diligence and more perfect knowledge of the defendants and -to require them to keep the statute in mind while relying on the solemn adjudications of the Court.
As said by Walker, J., in Hill v. R. R., 143 N. C., 581, “The people are supposed to have confidence in their highest court, at least to the extent of ascribing to it the virtue of consistency and a desire to see that by no lack of stability in its-decisions shall any citizen be jeopardized or prejudiced in his rights, because he has simply acted upon the supposition that what the Court has so solemnly determined will again be its decision upon the same state of facts, or that at least, if it does change its mind, his rights and interests will be thoroughly safeguarded. If courts proceeded upon any different theory in the decision of causee, the people would be left in a state of uncertainty as to what the law is, and co'uld not adjust their business affairs to any fixed and settled principles which would, of course, produce most mischievous, if not disastrous, consequences.”
Again, Brown, J., says in Hill v. Brown, 144 N. C., 119, “We deduce the well-settled principle from a number of authorities that the law of contract enters into the contract itself and, in the construction, forms a part of it. It is practically a dormant stipulation in the contract, and it must be enforced as a part of it and as it is construed at the time the contract is made. Napier v. Jones, 47 Ala., 96; Davis v. Montgomery, 51 Ala., 146; Herndon v. Neave, 18 S. C., 354; Haskett v. Maxey, 139 Ind., 66; 19 L. R. A., 379. The annotator says, in commenting on the last cited case: ‘The effect of judicial decisions as the law of a contract made while the decisions are in force, although they are overruled before the time for enforcing the contract, is recognized in the above decision. The justice of this doctrine is apparent.’ ”
In the last case (Hill v. Brown) a title to land acquired in 1903 was sustained, because valid under a decision of the Supreme Court rendered in 1902, although overruled in 1904, and it has been approved in Mason v. Cotton Co., 148 N. C., 511, and Jones v. Williams, 155 N. C., 190, the Court saying in the last case, “Parties have the right to act upon the decisions of this Court in acquiring titles, and such titles will not be disturbed or the parties prejudiced by a subsequent reversal of the decision. We have so held in two recent cases — Hill v. R. R., 143 N. C., 539; Hill v. Brown, 144 N. C., 117. Such a rule is based upon an ancient maxim of the law, is a just one, and should be perpetuated.”
The same doctrine was approved at the last term in Fowle v. Ham, *461116 N. C., 12, and a title to land protected wbicb was acquired under tbe law as laid down in a single decision, altbougb it had been overruled.
The defendants, who are purchasers for value, bought when the two> latest decisions of this Court bearing on the question, by unanimous opinion, declared their title to be good, and I think they ought to be. protected as against the plaintiffs, who are volunteers.