Doe Ex Dem. Armfield v. Walker , 27 N.C. 580 ( 1845 )

Ejectment, in which both parties claimed under one Josiah Unthank. The plaintiff in order to show title in himself, offered in evidence a decree of the Supreme Court, made at December Term, 1833, in the case of Redmond and others v. the said Unthank and others, with sundryfi. fa's. and ven. ex. issuing thereon, all duly certified. This was objected to by the defendant's counsel, on the ground that it ought to have been accompanied by an exemplification of the bill and (581) answer. The objection was overruled, because the decree recited the bill and answer and other proceedings had in the suit. The plaintiff then offered in evidence the sheriff's deed, made in pursuance of a sale under a ven. ex. issuing from June Term, 1835, and returnable to December Term, 1835, which covered the land in dispute; and he proved the defendant to be in possession of the premises. In order to show that both parties claimed title under Unthank the plaintiff also offered in evidence a deed of conveyance from the said Unthank to one Jesse Saunders, executed in 1830, and deeds of conveyance from the latter down to the landlord of the defendant, and proved that the said Saunders died about eight months before this suit was brought. The deed from Unthank to Saunders was thus expressed: "This indenture made (here the date was inserted) between Josiah Unthank and Jesse Saunders witnesseth, I the said Josiah Unthank have this day bargained and sold a certain tract of land lying (here the boundaries of the land are set forth), for and in consideration of the sum of twelve hundred and eighty-eight dollars, to me in hand paid by the said Jesse Saunders, the right and title of the above described lands I will forever warrant and defend from me, my heirs and every of them, and every other person lawfully claiming, unto Jesse Saunders, his heirs and assigns, to have and to hold with all its profits and advantages appertaining"; signed and sealed by Josiah Unthank. This deed, in the opinion of the court, only conveyed a life estate to Josiah Saunders. The defendant offered to prove by a witness who wrote the deed that a fee simple was intended to be conveyed. This testimony was rejected by the court. The defendant then proved that himself and those under whom he claimed had been in the uninterrupted possession of the land from 1830 till the commencement of this suit, claiming adversely, and insisted, (1) That the deed from the said Unthank to Saunders conveyed a fee simple; and (2) If it did not, his title was made perfect by an adverse possession of more than seven years, under color of title; and (3) That it appeared from the return of the sheriff that two separate tracts of land, belonging to different defendants, (582) had been sold in mass. The court, as before stated, decided that the deed conveyed only a life estate, and was of opinion, from the return of the sheriff, that the sale was not in mass, but in separate tracts, and charged the jury that the adverse possession insisted on could not avail the defendant, as the plaintiff's right of action did not accrue till the death of Saunders, and, if the testimony was believed, the plaintiff was entitled to a verdict. The jury found a verdict for the plaintiff, and judgment being rendered thereon, the defendant appealed. The judge, on the trial of this cause, was of opinion that the deed from Unthank to Saunders conveyed but a life estate in the land and that the clause, "I will forever warrant and defend for me and my heirs and every other person, unto Jesse Saunders and his heirs, to have and to hold with all its (the land's) profits and advantages appertaining," was to be construed only as a covenant of warranty of the title and quiet enjoyment to Jesse Saunders and his heirs of the land described in the preceding part of the deed, and that this case was, therefore, within the meaning ofRoberts v. Forsythe, 14 N.C. 36, Wiggs v. Saunders, 20 N.C. 618, andSnell v. Young, 25 N.C. 389, where it had been held, that, when in a deed for land, a life estate only is mentioned in the premises and habendum clause, this estate cannot be enlarged into a fee by a distinct and separate covenant of warranty in the same deed to the grantee and hisheirs. The deed in question is certainly very informally drawn, yet it does not want the essential parts of a deed, as the names of the bargainor and bargainee, the consideration, the certainty of the land intended to be conveyed, and, we think also, the estate in fee, intended to be had and held by the grantee. In the beginning of the deed, it is stated to be an indenture between Josiah Unthank and Jesse Saunders; and it witnesseth (583) "I the said Josiah Unthank have this day bargained and sold (not saying to whom) a certain tract of land." Then the grantor proceeds in the deed to describe the land, mention the consideration, and insert the covenant of warranty of the right and title of the said landto Jesse Saunders and his heirs to have and to hold with all its profits," etc. The warranty clause and the habendum clause are here blended together in the same sentence. The words "to have and to hold with all its (the land's) profits," must refer to and be governed by the next antecedent in the sentence, to wit, Jesse Saunders and his heirs. If the heirs are not "to have and to hold," neither can Jesse Saunders himself. It includes both or neither. And the sentence was so written to prevent tautology, in the estimation of the writer of the deed. If a deed for a valuable consideration, give land to another and his heirs, it is a good deed on delivery to pass the estate in fee, notwithstanding it be very informally framed. Co. Lit., 7 (a), 4 Kent's Com., 461, and it is a rule of law that if two constructions can be placed on a deed or any part of it, that shall be given to it which is most beneficial to the grantee. We think that there is enough in the deed to carry the fee to Jesse Saunders. Therefore it is unnecessary to decide the other points raised in the case.

PER CURIAM. Venire do [de] novo.

Cited: Cobb v. Hines, 44 N.C. 347; Register v. Rowell, 48 N.C. 315;Phillips v. Thompson, 73 N.C. 545; Allen v. Bowen, 74 N.C. 157; Vickersv. Leigh, 104 N.C. 258; Real Estate Co. v. Bland, 152 N.C. 227.

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