Benson v. Benson ( 1920 )

BeowN, J.

We think the learned judge rested his decision upon the correct ground, viz., that plaintiffs do not take any estate from their father, who predeceased his own father, but take the inheritance by„ direct descent from their grandfather, J. U. Benson.

Thé deed executed by J. W. Benson and set out in the case was executed by him prior to death of his father, J; U. Benson, who owned the land in fee. J. W. Benson was never vested with any estate- or interest in the land whatever, for he died before his father. Therefore, the plaintiffs being, after J. W. Benson’s death, the heirs at law of J. U. Benson, took the land as heirs of the grandfather, and not as the heirs of their father.

It is immaterial whether the deed from J. W. Benson to N. H. Benson be a quitclaim or a deed of bargain and sale with covenants of warranty, it' constitutes no estoppel on plaintiffs, as they do not claim under or through him. Mastin v. Marlow, 65 N. C., 702; Cat. Lit., 352-b.

It is possible the deed of J. W. Benson may be sufficient to have estopped him from claiming the land had he survived his father, and the land descended upon him, for it is very generally held that a conveyance by an heir apparent, operating through its covenants, estops him fiom recovering the property when it subsequently descends to him, 10 R. C. L., 681, sec. 9, but it is nowhere held that such deed can estop one from taking the property who does not claim under him.

The land in controversy never descended upon J. W. Benson, and he never owned any estate in it. It descended directly upon the plaintiffs or the heirs at law of J. IJ. Benson.

That is the broad distinction between this case and Hobgood v. Hobgood, 169 N. C., 485, and other cases cited by defendants.

Affirmed.