Opinion
(January Term, 1867.)
1. A deed of bargain and sale is not void because of informality, if its terms be such as to show the intention of the parties.
2. A limitation in a deed of bargain and sale to one for life, with remainder in fee to another, the consideration being expressed to have been paid by the latter, is valid.
3. The widow of the remainderman in such case, the tenant for life surviving him, is not entitled to dower.
( Cobb v. Hines, Bus., 343, and Smith v. Smith, 1 Jon., 135, cited and approved.)
PETITION for dower, heard upon a case agreed, by Gilliam, J., at Fall Term, 1866, of the Superior Court of PERSON.
Jordan and Moore for petitioner.
No counsel for defendants.
The material facts set forth in the case agreed are as follows:
The petitioner is the widow of one Solomon Royster, who died in the year 1865 in Person County. One Prudence Mason, the aunt of Solomon Royster, before her death in 1852, published a will, which has been duly admitted to probate, containing the following clause: "I give and bequeath to my nephew, Solomon Royster, all of my monied estate after my just debts have been paid, for the special purpose of purchasing a tract of land, for a home for himself, his mother, Nancy Royster, my niece, Mary Ann Royster," etc. "For his mother, Nancy Royster, as long as she may live, and for my nephews and nieces named above, as long as they remain unmarried, and after my nephew, Solomon Royster, shall have complied with and performed the above special purpose, then the sole right and title shall vest in him, the said Solomon Royster, his heirs and assigns forever." In 1854 Solomon Royster, in pursuance of the provisions of that clause, purchased a tract of land of one Willis T. Royster, who executed a deed for the same. After the premises, in which Solomon Royster is described as "administrator of Prudence Mason," the deed proceeds: "That whereas the said Willis T. Royster (227) has sold a certain tract of land hereinafter described to Solomon Royster, administrator of Prudence Mason, deceased, for valuable consideration, to wit: five hundred dollars, the said tract to contain one hundred and six acres, etc. (describing it). The said land is to be Mary Royster's during her lifetime, after which time the right and title belongs to Solomon Royster, his heirs forever." A clause is added warranting the title "to Solomon Royster or his heirs."
Solomon Royster owned an interest at the time of his death in no other land than that conveyed to him as above. His mother, Nancy Royster, survived him, and is one of the parties defendant. He left two children who are also parties.
His Honor was of opinion that the petitioner was not entitled to dower in the land, and gave judgment accordingly; whereupon the petitioner appealed.
The petition for dower being a proceeding at law, the question as to the plaintiff's right will depend upon the title acquired by her husband under the deed executed to him by Willis T. Royster, whether limitations in said deed are in accordance with the directions of the will of Prudence Mason or not. Were the case in equity the court might order the deed to be reformed, if it were found that the trusts of the will were not carried out in the deed for the land which the testatrix directed the plaintiff's husband to purchase. But here we are bound to take the deed as it is, and to put such a construction upon it as the rules of law require.
The deed is one of bargain and sale, which derives its force and effect from the operation of the statute of uses. It is rather informal, but it is expressed in such terms as to enable us to discover the intention (228) of the parties, and that is sufficient to give it validity. 2 Black Com., 298; Cobb v. Hines, Bus., 343. This intention is evidently to limit an estate for life in the land to Nancy Royster, the mother of the bargainee, and the remainder to him in fee.
Can this be done in a deed of bargain and sale in which the pecuniary consideration is recited to have been paid by the remainderman? We think it may. It is well known that the modus operandi of a bargain and sale of land is that the valuable consideration paid by the bargainee raises a use, and then the statute immediately transfers the legal estate. But it is not required that the consideration of value shall necessarily be paid by the bargainee himself. The money or other thing of value may be paid by another person for him.
Thus it is said in the case of Smith v. Smith, 1 Jon., 135: "that a bargain and sale to B., in consideration of value paid by a stranger for and on account of B., raises the use in B., and the statute carries the legal estate. So if one, in consideration of value paid by A., bargains and sells the land to A. for life, remainder to B. in fee, it will be intended that A. paid the consideration, as well on account of B. as for himself."
It is clear that the principle is the same where the money is paid by the remainderman, instead of the tenant for life, which is the case before us. See Mildway's case, 1 Rep., 176, b.
The intendment of the law to which we have alluded is, in the present case, fortified by the fact that the consideration of the deed purports to have been paid by the bargainee as the administrator of Prudence Mason, whose will directs the money to be laid out in the purchase of land, as well for the benefit of the bargainee's mother as for himself. The mother thus taking as tenant for life, and having survived her son, he was never seized of such an estate in the land as entitles his widow to claim dower therein. (229)
The judgment given upon the case agreed must be affirmed.
PER CURIAM. Judgment affirmed.
Cited: Stevens v. Wooten, 190 N.C. 381.