Doe Ex Dem. Myers v. Craig

44 N.C. 169

• Court: Supreme Court of North Carolina
• Decided: December 5, 1852
• Status: Published

Opinion

Pearson, J.

Marmaduke Myers died in 1831, leaving a will, by which he devised his real estate to his six sons, “ to be divided equally among them, when the youngest should arrive at full age;” after which, is this clause: — “ Should it please God that any one or more of my six beloved sons, viz. Joshua, Calvin, Burwell, Thomas, Stephen and Albert, should die leaving no lawful heir, the land shall belong to those of the six whose names are written above, that God may let live.” Burwell and Thomas died in the lifetime of the devisor. The land was divided be■tween the other four when the youngest arrived at age. The tract in question fell to the lot of Calvin. He conveyed it in 1838, by deed of bargain and sale with general warranty to the defendant, and died in 1850, without leaving a child, and Stephen Myers, the lessor of the plaintiff, is one of his heirs at law. The plaintiff insists that his lessor is entitled under the will of Marmaduke Myers. The defendant insists that as he, Stephen, is one of the heirs at law of Calvin Myers, (his bargainor,) he is barred by the warranty of his brother. His Honor was of opinion that the warranty was a bar. To this the plaintiff excepts. There is error.

This case presents tire very question that was presented in Spruill v. Leary, 13 Ire. 225, (but was tried before that case was printed); and the question is, can the taker of the first fee, under a conditional limitation or executory devise, by which a fee is limited after a fee, by means of a bargain and sale in fee with warranty, bar the taker of the second fee, without assets descended — the taker of the second fee being his heir at law ?

Spruill v. Leary, decides that the warranty is a bar. The decision is put on Flynn v. Williams, 1 Ire. 509, and was filed hastily, upon the idea on the part of a majority of the Court, that Flynn and Williams was on all fours, and directly in point.

In that case, the taker of the second fee died, leaving the taker of the first fee his heir; so, the condition was extinct, or, in other words, both fees fell upon the same person — the first by the will, and the second by descent; and of course he then had an absolute estate, and neither he nor his heir could deny the title of one claiming under his deed.

In Spruill v. Leary, the taker of the first fee died, and the condition not having been performed, the estate passed to the taker of the second fee by force of the condition, unless the war ranty made by the taker of the first fee be stronger than the condition made by the original donor.

It is clear Spruill v. Leary is not sustained by Flynn v. Williams; and after much research, no authority has been found to support the “ artificial and hard rule, the practical operation of which, at this day, (would be) to enable one man to sell another man’s land, without compensation.”

I am directed by the Chief Justice and my brother Battle to state, that they concur in the reasoning and conclusion set out in the dissenting opinion filed by me in Spruill v Leary, (not reported until the next term, by mistake). See 13 Ire. Law, 408; and we deem it unnecessary to elaborate the subject any further.

PeR CuRiam. Judgment reversed, and venire de novo awarded.