Opinion
Spring Term, 1802.
Land purchased after the making of a will does not pass by any devise in it.
Ejectment, for a house and lot in the town of New Bern. The plaintiff claimed as heir-at-law to Richard Hunly, who had devised the residue of his property to his widow, the defendant, after having made sundry specific bequests. The deed for the lot in question was made to the testator after the executing of his will, though evidence was offered by the defendant to show that the purchase was made before.
Graham, for the defendant. From the time of the contract between the vendor and the testator, the former should be considered as a trustee for the latter, who was in truth the owner of the lot, and had a right to dispose of it as he thought fit. That an equitable estate in lands will pass by devise has long been settled by various adjudications. 1 Ch. Ca., 39; 1 Ves., 437; 2 Vern., 679. And if the disposition to the widow in the present case would be sustained by a Court of Chancery, it will prevent circuity of action to allow her to set up her title in this ejectment. Nor is such a defense a novelty in a court of law; for in Edward v. Baily, Cowp., 597, the defendant prevailed on the ground of an equitable title alone, though the legal estate was in the plaintiff.
Woods, for the plaintiff. That a devise of lands is considered in the nature of a conveyance by appointment, and that a man cannot devise lands which he has not, when he makes such conveyance, (221) are positions too clear to require authority or illustration. In this respect, there is no difference between the law of England and of this State; for we have no act of Assembly which allows the disposition by will of lands which the testator may have at the time of his death. Whatever right may be acquired by the devisee in the present instance, it is plainly not such a one as can be opposed to the legal estate which the law has cast upon the heir, and his claim is also strengthened by certain equitable considerations, which it was useless and even irregular to insist upon in this place.
The plaintiff having the legal title is consequently entitled to a recovery in this action. The case cited from Cowper went upon the ground of the plaintiff's attempting to defeat a solemn deed under his hand, whereby he covenanted to let the defendant enjoy the premises; but that is very different from the case of an heir who has done nothing to impair his title.
Verdict for the plaintiff.
NOTE. — See acc. Jiggitts v. Maney, 5 N.C. 258, which also decides that if there is a new publication of the will after the purchase, the land may pass.