Opinion
(December Term, 1845.)
1. A covenant by one for himself and his heirs to stand seized to an use in futuro, as, for instance, on his death, is good in law.
2. A., by deed poll, in consideration of love and affection, conveyed to his son B. and grandson C. certain lands, with the usual habendum and tenendum clause, and then follow these words: "and furthermore, we, the said B. and C., their heirs and assigns, are not to interrupt the said A. during his lifetime on the said premises, by them terms I have hereunto set my hand and seal," etc. Held, that this was a covenant by A. for himself and his heirs to stand seized to the use of B. and C. and their heirs on his death, and that, therefore, the statute of limitations could not commence running against B. and C. and their heirs until the happening of that event.
APPEAL from TYRRELL Fall Term, 1845; Manly, J.
(131) Heath for plaintiff.
No counsel for defendant.
Ejectment. The plaintiff showed the title in his lessors, Thomas Weatherly, Jr., and Thomas Weatherly, son of John, under a deed from Thomas Weatherly, Sr., executed in January, 1821. It was admitted that the defendant was in possession. (121)
The defendant relied upon a color of title and seven years actual occupation of the premises in dispute, between 1828 and 1839. Thomas Weatherly, Sr., died in the latter part of 1838. It was admitted that Thomas Weatherly, the son of John, was protected by infancy from the operation of the statute of limitations, and that a moiety of the lands had been heretofore recovered in his behalf; but it was insisted that, under the deed of January, 1821, the grantees would have a right of possession, at least against all except the grantor himself, and that Thomas Weatherly, Jr., being under no disability, was barred by the possession of the defendant.
A verdict for the plaintiff was submitted to, subject by agreement to be set aside and judgment for the defendant to be entered, as upon a nonsuit, in case the Court should think, in construing the deed of 1821, the said Thomas Weatherly, Jr., was barred by the statute of limitations.
The following is a copy of all the parts of the deed material to be recited in this case:
This indenture, made this day and year of our Lord between Thomas Weatherly, Sr., of the county of Tyrrell, of the one part, and Thomas Weatherly, Jr., and Thomas Weatherly, son of John, of the other part, witnesseth: The said Thomas Weatherly, Sr., as well for and in consideration of the good-will and love and affection which I have and beareth unto the said Thomas Weatherly, Jr., my son, and Thomas Weatherly, my grandson, as also the better maintenance and preferment of the said Thomas Weatherly, Jr., and Thomas Weatherly, my grandson, hath given and granted, aliened, enfeoffed, and confirmed unto the said Thomas Weatherly, Jr., and Thomas Weatherly, my grandson, all that messuage," etc. (here the land is described) "containing 100 (130) acres, more or less, to be equally divided between Thomas Weatherly, my son, and Thomas Weatherly, my grandson" (here follows some limitations in case of the death of the grantees without issue), "and all the estate, right, title, interest, property, claim and demand whatsoever, of him, the said Thomas Weatherly, Sr., of, in, and to the said messuage, tenements, land and premises, and every part and parcel thereof, with the appurtenances, and all deeds and writings concerning the said premises, now only in the hands and custody of the said Thomas Weatherly, Sr., or which he may get or come by without suit in law. To have and to hold the said messuages or tenements, lands and premises hereby given and granted, or mentioned, or intended to be mentioned, given and granted unto the said Thomas Weatherly, Jr., and Thomas Weatherly, my grandson, their heirs and assigns" (then follows a clause of warranty); "and, furthermore, we, the said Thomas Weatherly, Jr., and Thomas Weatherly, my grandson, their heirs and assigns, are not to interrupt the said Thomas Weatherly, Sr., during his lifetime on the said premises. By them terms I have hereunto set my hand and seal, this 14 January, 1821. THOMAS WEATHERLY. [SEAL.]
The court was of opinion that the deed in question did not contain a reservation to himself by the grantor of a life estate, or, indeed, any estate whatsoever in the land, but a mere engagement on the part of the grantees, upon accepting the deed, that they would not molest the grantor in his occupation. The court was, therefore, of opinion that the statute of limitations began to run, as against Thomas Weatherly, Jr., with the beginning of the defendant's occupation, and that the said Thomas was barred by the statute.
In conformity to this opinion, a judgment as upon a nonsuit was rendered, and the plaintiff appealed.
In construing the deed mentioned in the case, the judge was of opinion that Thomas Weatherly, Sr., covenanted to stand seized of the land to the use of his blood relations, the lessors of the plaintiffs; and that the possession was immediately transferred to the use by force of the statute of uses; and that, therefore, the statute of limitations began to run, by the adverse possession of the defendant, in 1828, which being continued for more than seven years, under a color of title, before this action was brought, tolled the entry of the lessors of the plaintiff. We do not agree with his Honor. It seems to us that it is a covenant by Thomas Weatherly, Sr., for him and his heirs to stand seized to an use, in futuro, to wit, on his death. Such a covenant is good in law. Doe v. Whittingham, 4 Taunt., 20; Roe v. Traumars, Willes, 682, 2 Wilson, 75. The following clause in the deed poll, made by the covenantor, induces us to say that the use to the covenantees was to be a future one: "And, furthermore, we, the said Thomas Weatherly, Jr., and Thomas Weatherly (my grandson), their heirs and assignees, are not to interrupt the said Thomas Weatherly, Sr., during his lifetime on the said premises. By them terms I have hereto set my hand and seal." The deed is obviously one executed by a person inops consilii. It is ungrammatical and inartificial from beginning to end, and in the clause quoted, the language changes the person of the speaker four times. But being a deed poll, the covenantor in truth is the only speaker; and the plain meaning is that he declares that although he covenants to stand seized to the use of his son and grandson, he is not to be so seized during his life, but that for that period he is to stand seized to his own use. That is the obvious intention of the parties, and, therefore, it is to govern in the construction of the deed. The covenantees never before had a right of entry, for it did not exist until the death of the covenantor, as the use (132) then sprung to them, and the statute then executed the possession to it and converted it into a legal estate in fee, if there was at that time any person seized of an estate of inheritance to serve the use. The inheritance, in the meantime, remained in the covenantor, his heirs and assigns, who were to answer to the precipe of others and perform the feudal duties until the use sprung up for the benefit of the covenantees. Watkins on Convey., 145. An use can never be turned into a legal estate by force of the statute, unless there be a person at the time the use springs up, seized of an estate in the lands to serve the said use. 1 Saunders on Uses, 231. And there must also be privity of estate; for he who comes in the post, as the lord by escheat, disseizor, abator, intruder, or one who comes in paramount the person limiting the use, as a disseizee, or a person entering for a condition broken, shall not be subject to the use. And there must, also, it seems, be a privity of person, for a purchaser without notice of the use shall not hold charged with the future use. 1 Fearn, 479; Watkins (ed. By Preston), 141; Cornish on Uses, 130; 1 Co., 122, 139. But this last principle or doctrine (privity of person), says Mr. Preston, is only applicable to trusts as distinguishable from uses, and possibly to future uses to arise by means of a covenant to stand seized, or a bargain and sale as distinguished from a conveyance to uses. Ibid. It is stated in this case that the defendant is in possession under a color of title; but it is not stated how or from whom he derived his title. It may be that he, by an innocent conveyance, derived it from Thomas Weatherly, Sr., his heirs or assigns; if he did, he is privy in estate with the original person who was seized to the future use of the covenantees. It may be that he is also privy in person, that is, had knowledge of the future springing use to the covenantees; if (133) he is placed in this situation, he cannot be heard to raise, in his defense, the act of limitations, but the future use in the covenantees would be so knitted to his seizin as that the statute would operate and execute the said use when it arose. It may be that the defendant derives his color of title in the post, and then he, of course, can never be considered to be seized to the use of the present lessors of the plaintiff. But, like every other person who sets up the statute of limitations, it laid on the defendants to show the facts which put it in motion. So, likewise, if he claims any benefit from being a disseizor, he must establish clearly that he was a disseizor; for the court ought not at any time to presume a disseizin, and much less will it be done now, when we know that seldom, if ever, any other mode of conveyance is used than an innocent one operating under the statute of uses. We think, therefore, the judgment should be reversed, and judgment should be entered for the plaintiff on the verdict.
PER CURIAM. Reversed.
Cited: Cobb v. Hines, 44 N.C. 347; Kincaid v. Perkins, 63 N.C. 283; Savage v. Lee, 90 N.C. 323.