Warren v. . Short

25 S.E. 704, 119 N.C. 39

• Court: Supreme Court of North Carolina
• Decided: September 5, 1896
• Status: Published

Opinion

Avery, J. :

A conveyance of land at common law was deemed, unless a contrary intent was expressed in the deed, to relate to the date of its execution, and hence in construing the Statute of Wills (which contained the words “ having au estate of inheritance”) the courts decided that devises, being a species of conveyance, only land to which the devisor had title at the date of the execution of the instrument, not laud acquired between that time and his death, passed by a general disposition of all of his land. 2 Blk., p. 378. A person may convey the whole mineral interest, or only a particular mineral, or the whole of the timber, or only certain trees designated by dimensions or species, or by .both, and in either case such trees pass as ful fill the description at the time of executing the conveyance. The modification of the common law principle, in so far as it relates to devises, in no way affects its application to deeds of conveyance. Upon this principle, as well as upon the reason of the thing, it was held in Whitted v. Smith, 2 Jones, 36, that an exception in a deed of “all the pine timber that will square one foot” embraced only such timber as had attained the size specified at the time. An exception in a deed of a part of the thing granted must be described with the same certainty as the subject-matter of the conveyance, and hence the rules for ascertaining what is excepted must be the same as those for determining what passes by the deed.

The conveyance contained no language which evinced a purpose to take the instrument out of the general rule. One may convey something that has no potential existence, subject to such restrictions as are imposed by public policy, provided, always, he expresses with sufficient clearness his intent to do so. Williams v. Chapman, 118 N. C., 943; Brown v. Dail, 117 N. C., 41; Loftin v. Hines, 107 N. C., 360. The deed might have been so drawn as to pa«s all trees that would attain the size mentioned within a reasonable, though not for an indefinite period, but the terms of the deed cover none that did not fill the description at its date, and no others passed. Robinson v. Gee, 4 Ired., 186.

For the reasons given the judgment of the court below is affirmed.

Affirmed.