Opinion
(June Term, 1863.)
1. Where a father, by deed, gave to his daughter and the heirs of her body a tract of land, and provided that "if the said daughter should die and leave an heir or heirs of her body, in that case, said heirs being her children or child, are to have, occupy, and possess all the property herein given, to them and their heirs forever," it was held that the children of the said daughter take as purchasers, and that the rule in Shelley's case does not apply.
2. Whether the rule in Shelley's case would apply where the limitation is to A. for life, remainder to the heirs of her body and their heirs, quere.
EJECTMENT, tried before Bailey, J., at Fall Term, 1862, of CUMBERLAND.
The counsel for the parties, respectively, agreed on the following case:
In 1803, Jesse Potts made to his daughter, Nancy C. Potts, a deed, of which the following is the material parts relating to the case: "The said Jesse Potts as well for and in consideration of the natural love and affection which he hath and beareth unto the said Nancy C. Potts, his daughter, as also for the better maintenance and preferment of the said Nancy C. Potts his daughter, agreeable to the conditions following, hath given, granted, and confirmed unto the said Nancy C. Potts that tract, etc. (describing it): Provided my daughter Nancy C. Potts should have an heir or heirs of her body to live and survive; then and in that case all the property above given is to belong to the said heirs, to them should die and not leave any surviving heir or heirs of her body, in that case all the property is to descend back to the said Jesse and his heirs, the same as if the said land and other property had never been given to the said Nancy C. Potts. . . . But if the said Nancy C. Potts should die and leave an heir or heirs of her body, in that case, said heirs being her children or child, is to hold, occupy, and possess all the property herein given to them and their heirs forever." Nancy Potts (103) was married to William H. Williams, and by him had two children, the lessors of the plaintiff. William H. Williams died in 1815, and under him the defendants claim. Nancy C. Williams died on 11 June 1859. It is agreed that the defendants were in possession at the time of the beginning of the suit, and that the land sued for is that known as Springfield in the deed. The defendants and those under whom they claim have had possession of the land for forty years, claiming it as their own.
If the court shall be of opinion for the plaintiff, judgment is to be rendered for him; otherwise, for the defendant.
His Honor gave judgment for the plaintiff, and the defendants appealed to this Court.
W. McL. McKay for plaintiffs.
Shepherd for defendants.
The case turns upon the legal effect of the deed of Jesse Potts. We are of opinion that the clause, "but if the said Nancy C. Potts should die and leave an heir or heirs of her body, in that case said heirs, being her children or child, is to hold, occupy, and possess all the property herein given, to them and their heirs forever," together with the whole instrument, shows clearly that the words" heir or heirs of her body" are used in the sense of child or children, and the case is simply this: a life estate to Nancy. C. Potts with a remainder to her child or children and their heirs, but if she die leaving no child or children at her death, then over. So the children take as purchasers and the rule in Shelley's case does not apply.
It is not necessary to consider whether the rule is Shelley's case would apply where the limitation is to A. for life, with remainder to the heirs of her body and their heirs; although we incline to the opinion that the rule would not apply, for, if it did, A. would take an estate tail, leaving the reversion in fee in the grantor. Whereas, the limitation to the heirs of her body, and their heirs forever, shows that the whole estate was granted, and no reversion was left in the grantor; so the heirs of her body would take a different estate by purchase from that which would come to them by descent as heirs of her body, and the rule, (104) it would seem, does not apply.
PER CURIAM. Affirmed.
Cited: Clark v. Cox, 114, N.C. 100; Marsh v. Griffin 136 N.C. 335.