Walker, ■ J.
The first question to be determined is as to the effect
of the
three paper-writings executed by John and Betsy Eason,' 12 August, 1851. Do they all constitute one deed, or is the first of the writings to be treated as separate and distinct from the others and to> be regarded as a deed com veying the land in fee to Julius O. and John V. Eason in severalty, each taking the part allotted to him ? These writings were all executed at one and the same time and, in our opinion, must be considered together as intended to be one deed.
Helms v. Austin, 116
N. C., 751. But whether this is so or not, the three instruments express the true intent of the parties, and, upon the allegation of the answer that the purpose was to 'convey the land to Julius 0. and John Y. Eason in fee, with a provisó that if either of them should die without issue living at the time of his death his share should go to the other, we would, upon a bare inspection, so reform
the first instrument as to express what was unmistakably the real intention of the parties.
Vickers v. Leigh,,
104 N. C., 248;
Helms v. Austin, supra.
The makers of these instruments evidently intended that they should be considered as parts of one indivisible transaction and have the force and effect of conveying the estate as above indicated, the same as if the words of limitation had been contained in one deed. This construction of the instruments as one deed conveying an estate in fee to the brothers, Julius O. and John V. Eason, with a shifting use to the survivor in case either should die without issue living at his death, does not produce any repug-nancy in the different clauses of the deed. It is contended by the learned counsel for the plaintiffs that the first of the endorsements should be treated as a last clause in the deed.
Wilkins v. Norman,
139 N. C., 40. But we do not think so. As the. purpose of the parties is manifest, the limitation in the endorsement should be so inserted as to effectuate it; but even if treated as a last clause in the deed a repugnancy would not arise between it and what precedes in the premises and
habendum.
We do not think such repugnancy would in law be the result. The case of
Rowland v. Rowland,
93 N. C., 214, is a direct and conclusive authority against such a construction of the deed, if it were read as the plaintiffs insist it should be. There the limitation in the premises was by John S. Eowland to his two children, John and Ophelia, and to the heirs of each of them forever, and in the
habendum
to the said John and Ophelia and their heirs as aforesaid, as tenants in common, and, upon the death of either of them, to the survivor and his or her heirs forever. The Court said, according to Blackstone (Yol. II, p. 298), that the office of the
habendum
is to lessen, enlarge, explain or qualify the premises, but not to contradict or be repugnant to the estate granted therein. If an estate is given to one and his heirs in the premises,
habendum
to him for life, there is a repug-nancy, and the fee is not divested or turned into a life estate
by the
habendum;
but if an estate is given to one and bis heirs,
habendum
to him for the life of another, there is no repugnancy, for, as the estate may endure beyond the life of the grantee — that is, during the life of the
cestui que vie
— the heir may take and hold after the death of his ancestor as a special occupant during the time for which the estate is limited — that is, during the life of the
cestui quo vie.
Other illustrations might be given as showing how the word “heirs” used in the premises may be qualified and explained in the
habendum
or subsequent part of the deed without producing any repugnancy. So, in
Rowland v. Rowland, supra,
the Oourt, when construing a proviso' similar to the one we are now considering, said: “After giving effect to the operation of tho
habendum
as maintained by the authorities cited, the question is still presented, Does the estate, upon the death of Ophelia, pass to the
survivor
or go to her heirs generally? We are of the opinion it did pass to John B. Rowland as
survivor
by the operation of a shifting use. The deed is a covenant to stand seized to uses. Its effect was to transfer the use to the two donees in fee, and upon the death of Ophelia to shift the use of her moiety to John and his heirs. By a shifting use a fee may be limited after a fee. 2 Blackstone, p. 334;
Smith v. Brisson,
90 N. C., 284.” See
Rowland v. Rowland,
93 N. C., 220.
Having arrived at the conclusion that the contemporaneous writings executed by John and Betsy Eason, 12 August, 1857, constitute but one instrument in law, to be considered as if all their provisions had been inserted in the first of the writings, and that by a proper construction of them the land was conveyed to the uses declared by the grantors, it would seem to be unnecessary to decide whether the defective probate of these instruments was cured by the Acts of 1893, ch. 293; Revisal, sec. 1017. . The acknowledgment and privy examination of the wife having been taken before the execution" was proved as to the husband, the probate was defective under
the law then existing.
Burgess v. Wilson,
15 N. C., 360;
Pierce v. Wanett,
32 N. C., 446;
McGlenery v. Miller,
90 N. C., 215;
Ferguson v. Kinsland,
93 N. C., 337;
Southerland v. Hunter,
93 N. C., 310. If the defective probate is cured by subsequent legislation, Julius C. Eason, as the survivor of the two brothers, the other having died without having issue living at his death, succeeded to the latter’s interest in the land. But if the probate is not validated and the deed of 1857 is consequently void, he would succeed to his brother’s interest in the same way under the deed of 1883, as the limitations under the two deeds are substantially the same. In other words, if Julius C. Eason acquired nothing under the deed of 1857 because of the defective probate, the entire estate remained in his mother, and she, by the deed of 1883, conveyed it to her two sons, so that Julius, by the death of his brother without issue, acquired the same estate as he would have taken under the deed of 1857, had it been valid.
In view of the construction placed by us upon the deed of 1857, it is also useless to consider the effect of the quitclaim deed and the deed of the Sheriff, as it must be that whatever interest Jrdius C. Eason did not acquire under either of them passed to him under the deed of 1883.
The plaintiffs also contended that the deed of 1883 is void for want of a sufficient consideration to raise a use in favor of Julius C. and John Y. Eason, because the statute of uses converts into a legal estate the use which was before only an equitable interest, and equity would enforce no use where there was not either a good or a valuable consideration to support it. But this doctrine does not apply since the statute concerning the registration of deeds, registration now taking the place of livery of seizin. It is for that reason said by the Court in
Rowland v. Rowland,
93 N. C., at p.
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Walker, ■ J.
The first question to be determined is as to the effect
of the
three paper-writings executed by John and Betsy Eason,' 12 August, 1851. Do they all constitute one deed, or is the first of the writings to be treated as separate and distinct from the others and to> be regarded as a deed com veying the land in fee to Julius O. and John V. Eason in severalty, each taking the part allotted to him ? These writings were all executed at one and the same time and, in our opinion, must be considered together as intended to be one deed.
Helms v. Austin, 116
N. C., 751. But whether this is so or not, the three instruments express the true intent of the parties, and, upon the allegation of the answer that the purpose was to 'convey the land to Julius 0. and John Y. Eason in fee, with a provisó that if either of them should die without issue living at the time of his death his share should go to the other, we would, upon a bare inspection, so reform
the first instrument as to express what was unmistakably the real intention of the parties.
Vickers v. Leigh,,
104 N. C., 248;
Helms v. Austin, supra.
The makers of these instruments evidently intended that they should be considered as parts of one indivisible transaction and have the force and effect of conveying the estate as above indicated, the same as if the words of limitation had been contained in one deed. This construction of the instruments as one deed conveying an estate in fee to the brothers, Julius O. and John V. Eason, with a shifting use to the survivor in case either should die without issue living at his death, does not produce any repug-nancy in the different clauses of the deed. It is contended by the learned counsel for the plaintiffs that the first of the endorsements should be treated as a last clause in the deed.
Wilkins v. Norman,
139 N. C., 40. But we do not think so. As the. purpose of the parties is manifest, the limitation in the endorsement should be so inserted as to effectuate it; but even if treated as a last clause in the deed a repugnancy would not arise between it and what precedes in the premises and
habendum.
We do not think such repugnancy would in law be the result. The case of
Rowland v. Rowland,
93 N. C., 214, is a direct and conclusive authority against such a construction of the deed, if it were read as the plaintiffs insist it should be. There the limitation in the premises was by John S. Eowland to his two children, John and Ophelia, and to the heirs of each of them forever, and in the
habendum
to the said John and Ophelia and their heirs as aforesaid, as tenants in common, and, upon the death of either of them, to the survivor and his or her heirs forever. The Court said, according to Blackstone (Yol. II, p. 298), that the office of the
habendum
is to lessen, enlarge, explain or qualify the premises, but not to contradict or be repugnant to the estate granted therein. If an estate is given to one and his heirs in the premises,
habendum
to him for life, there is a repug-nancy, and the fee is not divested or turned into a life estate
by the
habendum;
but if an estate is given to one and bis heirs,
habendum
to him for the life of another, there is no repugnancy, for, as the estate may endure beyond the life of the grantee — that is, during the life of the
cestui que vie
— the heir may take and hold after the death of his ancestor as a special occupant during the time for which the estate is limited — that is, during the life of the
cestui quo vie.
Other illustrations might be given as showing how the word “heirs” used in the premises may be qualified and explained in the
habendum
or subsequent part of the deed without producing any repugnancy. So, in
Rowland v. Rowland, supra,
the Oourt, when construing a proviso' similar to the one we are now considering, said: “After giving effect to the operation of tho
habendum
as maintained by the authorities cited, the question is still presented, Does the estate, upon the death of Ophelia, pass to the
survivor
or go to her heirs generally? We are of the opinion it did pass to John B. Rowland as
survivor
by the operation of a shifting use. The deed is a covenant to stand seized to uses. Its effect was to transfer the use to the two donees in fee, and upon the death of Ophelia to shift the use of her moiety to John and his heirs. By a shifting use a fee may be limited after a fee. 2 Blackstone, p. 334;
Smith v. Brisson,
90 N. C., 284.” See
Rowland v. Rowland,
93 N. C., 220.
Having arrived at the conclusion that the contemporaneous writings executed by John and Betsy Eason, 12 August, 1857, constitute but one instrument in law, to be considered as if all their provisions had been inserted in the first of the writings, and that by a proper construction of them the land was conveyed to the uses declared by the grantors, it would seem to be unnecessary to decide whether the defective probate of these instruments was cured by the Acts of 1893, ch. 293; Revisal, sec. 1017. . The acknowledgment and privy examination of the wife having been taken before the execution" was proved as to the husband, the probate was defective under
the law then existing.
Burgess v. Wilson,
15 N. C., 360;
Pierce v. Wanett,
32 N. C., 446;
McGlenery v. Miller,
90 N. C., 215;
Ferguson v. Kinsland,
93 N. C., 337;
Southerland v. Hunter,
93 N. C., 310. If the defective probate is cured by subsequent legislation, Julius C. Eason, as the survivor of the two brothers, the other having died without having issue living at his death, succeeded to the latter’s interest in the land. But if the probate is not validated and the deed of 1857 is consequently void, he would succeed to his brother’s interest in the same way under the deed of 1883, as the limitations under the two deeds are substantially the same. In other words, if Julius C. Eason acquired nothing under the deed of 1857 because of the defective probate, the entire estate remained in his mother, and she, by the deed of 1883, conveyed it to her two sons, so that Julius, by the death of his brother without issue, acquired the same estate as he would have taken under the deed of 1857, had it been valid.
In view of the construction placed by us upon the deed of 1857, it is also useless to consider the effect of the quitclaim deed and the deed of the Sheriff, as it must be that whatever interest Jrdius C. Eason did not acquire under either of them passed to him under the deed of 1883.
The plaintiffs also contended that the deed of 1883 is void for want of a sufficient consideration to raise a use in favor of Julius C. and John Y. Eason, because the statute of uses converts into a legal estate the use which was before only an equitable interest, and equity would enforce no use where there was not either a good or a valuable consideration to support it. But this doctrine does not apply since the statute concerning the registration of deeds, registration now taking the place of livery of seizin. It is for that reason said by the Court in
Rowland v. Rowland,
93 N. C., at p. 221: “Our courts, in their policy of relaxing the rigid and technical rules of the common law, have since extended the construction so as to bring all of our deeds of conveyance within the purview
of that statute. Thus it bas been held, that deeds of bargain and sale and covenants to stand seized to uses are put on the same footing with feoffments at common law, with respect to seizin, the declaration of uses thereon and the consideration.” And in
Love v. Harbin,
87 N. C., 252, the Court said: “Whatever may once have been our opinion upon the subject, it is now the settled rule in this State that, by reason of tire efficacy which the statute gives to the fact of their registration, all deeds are put upon the footing of feoffments, which take effect by livery of seizin and need no consideration as between the parties to support them.” See, also,
Hogan v. Strayhorn,
65 N. C., 279;
Ivey v. Granberry,
66 N. C., 223;
Mosely v. Mosely,
87 N. C., 69;
Cheek v. Nall,
112 N. C., 370. These authorities support the deed of 1883, even if it cannot be sustained as a covenant to stand seized to the uses declared therein, under
Cobb v. Hines,
44 N. C., 343;
Bruce v. Faucett,
49 N. C., 391, and cases of that class.
The quitclaim deed did not estop' Julius C. Eason to deny the title of plaintiffs. “It is elementary learning that a quitclaim deed operates as a release only of such interest as the maker has or as may be specifically named. It is for this reason that no estoppel grows out of such a deed. Nothing in respect to the maker’s interest is asserted. The very terms of the deed put the purchaser upon notice that he is buying a doubtful title. Tn form a quitclaim deed is like the common-law release — a derivative or secondary common-law form. In substance it is similar to an original common-law deed, creating an estate and not requiring for its operation any estate in possession or otherwise in the grantee. In effect it transfers to the grantee whatever interest the grantor has in the property described, be it a fee, chattel interest, a mere license or nothing at all.’ 9 Am. and Eng. Enc., 104. It implies a doubtful title in the party executing it.”
Lumber Co. v. Price,
144 N. C., 53;
Hallyburton v. Slagle,
132 N. C., 947. It is not an estoppel upon the grantee so as to
preclude him from denying that lie received any estate by tbe deed or from setting up rights under superior titles.
San Francisco v. Lawton,
18 Cal., 465 (19 Am. Dec., 187). “If the grantor, then, might show that no title passed by his quitclaim, and recover the land in opposition to it, why should the month of his grantee- be closed from denying that he received an estate in fee from him or that, indeed, any title passed by his conveyance ? Apply the rule of mutuality and it is impossible to assign a valid reason. Both parties must be bound or intended to be, else neither is concluded. There can be no soundness in the principle of estopping a grantee from showing that no interest passed to him by the deed of the grantor, while the latter is permitted to show it.”
Sparrow v. Kingman,
1 N. Y., 248. But in the view we take of the case it does not appear how the question involved can be affected in any way by an estoppel under the quitclaim deed.
We are of the opinion, upon a consideration of the whole case, that the conclusion of the referee and the judgment affirming the same were correct.
Affirmed.