Kennedy v. . Johnson .

69 N.C. 249

• Court: Supreme Court of North Carolina
• Decided: June 5, 1873
• Status: Published

Opinion

Reade, J.

By a proper construction of the deed of 22di January, 1866, from the three Sinclairs to the plaintiffs, the dwelling and other houses and so much of the land as they might need, was retained by the grantors during their lives and the life of the survivor. So that the plaintiff has no-control whatever over it, nor entitled to the possession. If this were not so, if there was no reservation in the deed in; so many words, still the stipulations in the deed would in equity be construed an agreement on the part of the plaintiff that the grantors should possess and enjoy the houses and so much of the land as they need. And equity would compel the plaintiff to perform the- agreement.

Conceding this to be so, then the plaintiff says that on the death of two of the grantors he immediately succeeded to their interests and thereby became tenant in common with the survivor, and is entitled to be let into the joint possession. We do not think so. We have already said that the reservation is for the longest life of the grantors, and that during that period the plaintiff has no rights. And treating it as a covenant on the part of the plaintiff, the circumstances are to be looked to to ascertain the meaning. Here were a brother and two sisters, very old and infirm, living together, and selling their home, which was all they had in the world, and reserving the' use of it during their lives. It is not to be supposed that they meant to give it up as soon as one should die or that a stranger should be let into the house with the survivors or survivor.

Furthermore, the plaintiff does not ask in the pleadings 'to be let in as tenant in eommon, but he asks for the exclusive possession. To meet this difficulty his counsel suggested that if not entitled to the precise relief asked- for, yet if entitled to any other it should be afforded him. It Is true that such is the literal provision of the Code. . But it must be understood with the qualification, that whatever ¿relief is sought must be sought below, and must not be ■sprung in the Appellate Court for the first time.

The right of the plaintiff w-ould seem to be, not to turn the defendant out and take exclusive possession, nor yet to be let into possession with her, but to have an inquiry as to how much of the land the defendant “ needs,” and then the plaintiff would be entitled to the exclusive possession of all that she does not need. But this relief was not sought in the Court below, nor indeed was it sought here.

The plaintiff also asks to have the cloud removed from his title caused by the fact that the only surviving grantor, the female defendant, had conveyed the land in fee simple to the defendant. And we suppose that upon general prin«iples he would be entitled to that relief. But the defendant alleges that the aforesaid deed was obtained from her by the fraud and circumvention of the plaintiff; and there is so much in the circumstances of the case tending to make the allegation probable that we would leave the plaintiff to his strict legal rights. When the plaintiff shall institute proper proceedings to be let into so much of the land as the defendant does not need, and therefore did not reserve, the alleged fraud can be set up by the defendant and the question can be tried.

There is no error.

Per Curiam. Judgment affirmed..