Summary
In Moore v. Parker, 34 N.C. 123, it was held that a report that a person who had been absent seven years was alive, which report, on investigation, proved to be unfounded, would not rebut the presumption of death.
Summary of this case from DOWD v. WATSONOpinion
(June Term, 1851.)
1. A. devised to his son a tract of land "for and during his natural life," and after his death "to the heirs of his body, to be equally divided between them, to them and their heirs forever"; and if he dies without heirs of his body living at the time of his death, then to his daughter: Held, that under this devise the son took only a life estate.
2. The son having only a life estate, when he sells and conveys the land with warranty in fee, this warranty does not bar nor rebut the purchaser.
3. The presumption of death arising from the absence of a party for more than seven years is not removed by proof of a rumor during that time of his being alive, which rumor, upon investigation, turns out to be without foundation.
APPEAL from Dick, J., at HERTFORD Spring Term, 1851.
Ejectment. The case was as follows: The land formerly belonged to one John S. Moore, who died in 1827, having first made and published his last will in form to pass real estate, which was duly proved and recorded. And in the said will the said land was devised as follows: "I give, devise, and bequeath to my son, Adolphus Edward Moore, for and during his natural life, the three following tracts of land to wit: (Here the testator describes the lands.) I also give and bequeath to my son Adolphus Edward aforesaid, for and during his natural life, one feather bed and furniture, my large brandy still, and two mahogany tables. The above property, both real and personal, I give to my son Adolphus aforesaid for and during his natural life; and after his death, I give the above property, both real and personal, to the heirs of his body lawfully be gotten, to be equally divided between them, to them and their (124) heirs forever. But in case my son Adolphus Edward should die without such heirs of his body lawfully begotten, living at the time of his death, then and in that case the lands given to him as above described to my daughter, Sally Matilda aforesaid; and should she die without heirs of her body begotten, living at the time of her death, then I give the above described land to all my children living at the time of her death, to be equally divided between them, to them and their heirs forever"; which is all in the will that relates to the land in controversy.
Adolphus E. Moore, to whom the land was devised as aforesaid, took possession of the land after the father's death, and continued that possession until the year 1837, when, by his deed of bargain and sale with warranty, he conveyed the same to one Alfred W. Moore, and thence by successive deeds the title was transmitted to the defendant before the date of the demise in the plaintiff's declaration.
It was further in proof that the said Adolphus E. Moore left the county of Hertford in December, 1841, and the witnesses for the plaintiff, to wit, the brother of the said Moore, the husband of his sister, and the brother of his wife, and with whom she had resided ever since the said Moore left this State, stated that they had never heard from him since 1842, and the brother stated that in 1842, and prior to November, he had received two letters from the said Adolphus, dated in Winyaw District, South Carolina, and that he subsequently received another letter from Charleston, South Carolina, dated November, 1842, but that he had never heard from him since, though he had written to both places to have inquiries made, and he and the husband of the sister of said Moore stated that they had requested persons travelling South to inquire for him, but had never heard from him.
The defendant then proved that one John D. Jenkins, since deceased, while traveling in South Carolina in 1845, wrote to his brother in Hertford County that he had heard of the said Moore, and that he was in South Carolina.
(125) The plaintiff then proved by the brother and the husband of the sister of said Moore that on the return of the said Jenkins, having before heard what he had written, they called on him to ascertain what information he had on the subject, and were told by him that he had no other than this — that he had seen a man in South Carolina whom he did not know, who told him that he had heard of a man by the name of Moore residing in some village, he did not remember what, who was said to be a shoemaker, with a wife and three children. It was further proved that the said Adolphus had no such trade when he left this State; and, also, that when he left this State he had a wife, who is yet alive, and that the lessor of the plaintiff was his only child, and that she is yet an infant.
The defendant's counsel insisted that, under the will of John Moore, the lessor of the plaintiff had no title to the land devised, so as to recover; and if that was not so, that there was not sufficient proof that the said Adolphus was dead at the time of the demise of the plaintiff's lessor.
By agreement, his Honor reserved his opinion upon the first point. And on the second he charged the jury that if the said Moore had been absent upwards of seven years, and had not been heard from, the law raised the presumption that he was dead, and that such presumption could not be rebutted by a report of his being alive, which when inquired into proved to be baseless and unfounded.
The jury returned a verdict for the plaintiff; and his Honor, by consent, ruled pro forma that under the said will the land passed to the plaintiff's lessor on the death of her father. And judgment was rendered accordingly, and the defendant appealed.
Bragg for plaintiff. (126)
W. N. H. Smith for defendant.
John Moore, who died in 1826, devised the land sued for to his son Adolphus for life, "and after his death to the heirs of his body, to be equally divided between them, to them and their heirs forever"; and if he dies "without heirs of his body, living at the time of his death," then to his daughter, Sally Matilda.
Adolphus took only an estate for life. The rule in Shelley's (129) case does not apply.
This point is settled by Ward v. Jones, 40 N.C. 400, where the matter is fully discussed and the cases reviewed. Indeed, this is a plainer case, for there no words of inheritance were added to the estate of the issue, and it was necessary to supply them by inference from the act of 1784, ch. 204, sec. 12. Here the words are added by the will. Then it was necessary to supply the words "living at the time of his death" by inference from the act of 1784; here the words are added by the will.
Adolphus Moore having only an estate for life, his warranty does not bar or rebut the lessor of the plaintiff, for she claims by purchase and not by descent. By the Rev. Stat., ch. 43, sec. 8, it is provided that all warranties made by a tenant for life, descending or coming to any person in remainder or reversion, shall be void and of no effect. This is a reenactment of 4 Anne, ch. 16, sec. 21.
We also concur with his Honor upon the question as to the presumption of death when one has been absent or not heard of for more than seven years. The circumstance that during the term there was a rumor of his being alive, which proved upon investigation to be wholly without foundation, tended rather to confirm than to weaken the presumption, for it thus appeared that diligent inquiry had been made after him.
PER CURIAM. Affirmed.
Cited: Southerland v. Stout, 68 N.C. 450; Dowd v. Watson, 105 N.C. 476; Starnes v. Hill, 112 N.C. 13; Hauser v. Craft, 134 N.C. 329.
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