Opinion
(December Term, 1832.)
1. A devise to two, but if "either of them die, leaving no issue, that the whole should go to the survivor," is a good executory devise, and the devisees take as tenants in common in fee, with a contingent limitation to each of them, of an estate in severalty.
2. An executory devise in land is not destroyed by a sale under an execution against the first devisee.
3. A sale of the estate of one tenant in common under an execution against all, does not divest the estate of the others.
4. An executory devise has no right of entry until the contingency happens upon which his estate vests.
EJECTMENT, tried at WASHINGTON, on the last spring circuit, before Swain, J.
Gaston for defendant.
Badger contra.
On the trial the lessors of the plaintiff claimed under the will of Miles Hardy, which was in the following words: "I give and bequeath to my son Henry and my daughter Harriet Lee Hardy all the lands I may be possessed of at my death. It is however, my will and intention that if either of my children aforesaid, at their death, should leave no issue lawfully begotten, that the whole of my estate, both real and personal, should descend to the survivor, and if they should both die, without," etc. They then proved that the testator died in 1816, and that in 1819, under an order of the county court of Washington, a partition of the land in dispute, which passed under the will, was made between the devisees, by which 199 acres were allotted to each of them, and that Henry Hardy died in 1830 without issue, and claimed the title to be in the female lessor of the plaintiff, who before her marriage (395) was Harriet L. Hardy. The defendant insisted that under the will of Miles Hardy his son Henry took an estate in fee; he objected to the partition as being informal, but for reasons which need not be stated. He claimed title to part of the land in dispute against both the devisees, under an execution issued at the instance of the officers of Washington County Court, whereby the sheriff was commanded to sell the estate of both in the land. But from the return of the sheriff it appeared that the estate of Henry only was sold, and by his deed to the purchaser nothing but Henry's title was conveyed. The defendant claimed the residue of the land under execution sales of Henry Hardy's property, and proved that he took possession of the land in dispute after those sales, and had continued it for more than seven years. Lastly, it was objected by the defendant that notice to quit had not been given him before the writ was sued out.
His Honor instructed the jury that the will of Miles Hardy was a valid limitation by way of executory devise to Harriet Hardy; that upon the death of her brother, without issue, she became entitled to the land in dispute; that if before the death of henry the interest of Harriet was subject to be sold under an execution against her (which his Honor did not decide); that neither the levy of the sheriff, as set forth in his return, nor his deed to the defendant would affect her title; that the possession of the defendant was not adverse to the title of the lessors of the plaintiff, until Henry's death in 1830, and that her right of entry was in no manner impaired by it; and, finally, that no relation existed between the lessors of the plaintiff and the defendant whereby the latter was entitled to notice to quit.
A verdict was returned for the plaintiff, and the defendant appealed.
after stating the case, proceeded: The first question for us to decide is whether Harriet Lee Hardy, who married (396) Southerland, took the land in question under the will of her father, Miles Hardy, by way of executory devise. Executory devises have generally been distinguished into three kinds: two relative to real, and one to personal estate. An instance of the first kind is one where the devisor gives the fee, but upon some contingency that disposition is qualified, and an estate limited on that contingency, as where a testator devised to B., his son, in fee, but if he died without issue, living A., then to A. in fee. It was held that B. took a vested fee simple, and that the limitation over to A. was good as an executory devise, to take effect upon B.'s dying without issue in the lifetime of A. Pells v. Brown, Cro. J., 590; 1 Eq. Ca. Ab., 187. Again, where a testator devised lands to his son B. in fee, and other lands to his son C. in fee, with a proviso that if either of them should die before they should be married, or before they should attain the age of 21 years, or without issue of their bodies, then he gave all the lands which he had given to such of his sons, so dying, etc., unto the one who should survive: It was held that the sons took in fee, subject to a limitation to the survivor, in case either died unmarried or under the age of 21 years, without issue. Hanbury v. Cockerell, Fearne, 396. According to these authorities, it appears to me that Henry Hardy was a tenant in common in fee of the lands in question, with a contingent limitation to his sister Harriet, and she held the same estate with a contingent limitation to her brother Henry. The testator, by his will, says, "If either of my children aforesaid, at their death, should leave no issue lawfully begotten, that the whole of my estate, both real and personal, should descend to the survivor." Here the event must necessarily happen, if ever, within a life in being, and immediately on the death of a person in being at the time of making the will, and the survivor is entitled to take, by way of an executory devise, the whole estate in the land. The event on which the contingent limitation was limited must necessarily take place within the period fixed by law for executory devises to vest; the event has taken place, Henry has died, leaving no issue lawfully begotten "at his death," and Harriet, as (397) survivor, on that event had a vested estate in fee simple in the whole of the land. As Henry, by the will of his father, had a base fee in the land, on which estate there was created by the will an executory devise to his sister, no conveyance which he could have made in his lifetime would have destroyed that executory devise, so neither will it be affected by an execution sale, and a deed from the sheriff to the purchaser. It is a rule that an executory devise cannot be prevented or destroyed by any alteration whatever in the estate out of which or after which it is limited. Romilly v. James, 1 Eng. C. L. R., 379.
The second objection made by the defendant is altogether immaterial in this case. Harriet, on the death of her brother without issue, was entitled to the whole land, and whether partition was or was not made does not affect the case. If a regular and legal partition had been made, and the defendant had purchased Henry's share, then Harriet's right of entry into that part would not have accrued until the death of Henry, which was in the year 1830. If no partition was made, then the defendant, after his purchase, was tenant in common with Harriet, and his possession was the possession of both. The third objection has no force in it; the sale under the execution, at the instance of the officers of the court, against Henry and Harriet Hardy, being of the estate of Henry alone, as appears by the return of the sheriff and the recitals in his deed to the purchaser. Harriet's estate in the undivided moiety of the lands which had belonged to Henry never vested until the year 1830, her right of entry as to that part did not arise before that time, and she is entitled at least to recover that moiety. But did the sheriff's deed pass her undivided moiety? I think the estate which Henry Hardy had, passed by the sheriff's deed, and that the deed conveyed nothing in Harriet's share, nor is it color of title as against her.
The fourth objection is without weight, as the defendant (provided the sheriff's deed did not convey the moiety belonging to Harriet) was tenant in common with Harriet, and a possession of one (398) tenant in common is, in contemplation of law, the possession of all the tenants in common, and is so considered until something shall evince an actual ouster, and nothing of that kind appears in this case; a bare perception of the profits for so short a space of time as the defendant has had the possession is not sufficient evidence of an actual ouster. Henry died in the year 1830; his interest under the executory devise did not vest in his sister until that time, and this action was brought in a short time thereafter; the entry of Harriet is not barred by the act of limitations. The fifth objection will not avail the defendant. There was not any such relation between the lessors of the plaintiff and defendant as required a notice to quit.
PER CURIAM. Judgment affirmed.
Cited: Knight v. Leak, 19 N.C. 136; Rowland v. Rowland, 93 N.C. 217; Fleming v. Motz, 187 N.C. 594.