Hudson v. . Hudson

180 S.E. 597, 208 N.C. 338, 1935 N.C. LEXIS 406

Opinion

Stacy, C. J.

Plaintiff acquired title to the locus in quo under the will of her father. The testator first devised all of his property to his wife for her life and after her death “to my daughter, Essie May Hudson (the plaintiff), . . . to be hers and to her heirs, if any, and if no heirs to be equally divided with my other children.”

The case states that the testator’s widow, the life tenant, died 1 September, 1921; that the plaintiff was in the undisputed possession of the land described in the complaint at the time of the execution of the ■contract sought to be specifically enforced (II October, 1934) ; that plaintiff was married in April, 1929, abandoned by her husband soon thereafter, since which time he has lived apart from her; that “on account of said abandonment, the written consent of ber husband, as above described, is not necessary to the validity of same” (deed), under O. S., 2530, and that at the time of the execution of the contract of sale plaintiff had no children.

We agree with the trial court that the deed tendered by plaintiff was not sufficient to convey an indefeasible fee to the land, described therein, free and clear of the claims of all persons, whether the ulterior limitation in plaintiff’s father’s will be regarded as a limitation over on failure of issue, C. S., 1737, or as coming under the principle announced in Puckett v. Morgan, 158 N. C., 344, 74 S. E., 15; Walker v. Butner, 187 N. C., 535, 122 S. E., 301; Brown v. Mitchell, 207 N. C., 132, 176 S. E., 258; Massengill v. Abell, 192 N. C., 240, 134 S. E., 641; Willis v. Trust Co., 183 N. C., 267, 111 S. E., 163. Hence, the title offered was properly rejected.

Affirmed.