Blackburn v. . Blackburn , 109 N.C. 488 ( 1891 )

The only point presented for review is whether the indorsement on the deed vested an estate, either in law or equity, in Sarah Blackburn.

His Honor held that Sarah was entitled in equity to a life-estate, and from the judgment in conformity with that opinion the defendant appealed.

The following is the case agreed: Eli Blackburn, Sr., executed, on 11 May, 1872, a deed in fee simple to Eli Blackburn, Jr., for the following described land situate in Wilkes County (description given). On the back of said deed the following indorsement was made before he delivered said deed to Eli Blackburn, Jr., to wit: "Accordance deed. I, the said Eli Blackburn, Sr., do hereby certify that Sarah Blackburn, a daughter of said Blackburn, doth hold a lifetime possession in the said Eli deed." (Signed and sealed in the presence of witnesses.) It is agreed that the said indorsement has reference to the said deed executed 11 May, 1872, by Eli Blackburn, Sr., to Eli Blackburn, Jr. (489) It is very clear that the indorsement on the deed did not operate as an exception or reservation so as to vest an estate for life in Sarah Blackburn. Exceptions and reservations inure only to the benefit of the grantor and those claiming under him, and have no effect by way of passing an estate to a third party. Tiedeman, Real Prop., 843; 2 Devlin, Deeds, 979.

We think, however (without passing upon the question whether the language used can be construed into a covenant to stand seized to uses), that the judgment of his Honor may be sustained on the ground that the indorsement, made before or at the time of the delivery, amounted to a declaration of trust, to wit, that the grantee should hold the land for the use of the said Sarah for life. Even without consideration, an oral declaration of trust in favor of a third person, made contemporaneously with the transmission of the legal title, will, when established by competent testimony, be recognized and enforced in a court of Equity.Pittman v. Pittman, 107 N.C. 159.

If this be so, a fortiori will the court give effect to such a contemporaneous declaration when made in writing under seal and for a good consideration. No particular form of words is necessary to establish such a trust. "The intent is what the courts look to." 2 Fomb., 36, note; 3 Ves. Jun., 9; Bispham Eq., 98.

The language in our case is very similar to that used in Fisher v.Fields, 10 Johns., 494, which was held to be sufficient, and, indeed, upon looking over the many cases in the reports, there can be no doubt upon the question. (490)

The grantee, then, taking the title accompanied with this contemporaneous declaration, must be declared seized of the land in trust for Sarah Blackburn for the term of her natural life.

Affirmed.

Cited: Sykes v. Boone, 132 N.C. 202; Laws v. Christmas, 170 N.C. 316;Waldroop v. Waldroop, 179 N.C. 676.