Dawson v. . Quinnerly , 118 N.C. 188 ( 1896 )

That on or about 1 December, 1895, the plaintiffs contracted with the defendant to sell and convey to him in fee the lands described in the complaint for the sum of $3,500; that immediately thereafter the defendant entered into the possession of said lands under said (189) contract; that plaintiffs, on 27 December, 1895, procured a deed (including said land) to be written, conveying the same in fee to the defendant, and tendered the same to the defendant and demanded of the defendant the said $3,500, the purchase price for said lands, and the defendant refused to accept said deed and pay the purchase price, alleging that the deed from John Rhem to the plaintiff Priscilla L. Dawson, under which the plaintiffs claimed said lands, only conveyed a life estate to said plaintiff Priscilla L. Dawson, and that the plaintiffs were not able to convey to him the lands in fee simple in accordance with their said contract, and upon these reasons alone the defendant refused to perform his part of the contract. The habendum in the deed from John Rhem to Priscilla L. Dawson was as follows: "To have and hold to her, the said Priscilla L. Dawson, for and during the term of her natural life, as aforesaid; and at her death, then the same shall go and descend to the heirs of said Priscilla L. Dawson which have been or may be begotten on the body of said Priscilla L. Dawson by her present husband, the said L. W. Dawson, to them, the heirs of said Priscilla L. Dawson and L. W. Dawson, their heirs and assigns, forever."

At the trial his Honor decided that the said deed from said John Rhem to said Priscilla L. Dawson did convey the fee simple to the said Priscilla L. Dawson, and that the plaintiffs were able to convey to the defendant the fee simple title to said lands in accordance with said contract, and gave judgment against the defendant, etc., and the defendant excepted and appealed. In North Carolina the principle of law known as the rule in Shelley'scase has always prevailed. The estate conveyed in the premises of the deed to Mrs. Dawson is limited to a life estate, and in the habendum clause the following language is used: "To have and to hold to her, the said Priscilla L. Dawson, for and during the term of her natural life, as aforesaid; and at her death, then the same shall go and descend to the heirs of said Priscilla L. Dawson which have been or may be begotten on the body of said Priscilla L. Dawson by her present husband, the said L. W. Dawson, to them, the heirs of said Priscilla L. Dawson and L. W. Dawson, their heirs and assigns, forever." If the habendum had not contained the words "by the present husband, the said L. W. Dawson, to them, the heirs of said Priscilla L. Dawson and L. W. Dawson, their heirs and assigns, forever," the rule in Shelley's case would apply. These words, however, appearing, they furnish the necessary words of qualification and explanation to the other preceding words to take the case out of the rule. The qualifying and explanatory words used in the deed, as above pointed out, confined the remainder interest to the children of Priscilla L. Dawson and her husband, L. W. Dawson, thus altering the general rule of descent. Leathers v. Gray, 101 N.C. 162; Starnesv. Hill, 112 N.C. 1; Nichols v. Gladden, 117 N.C. 497. The act of 1784, ch. 204, sec. 5, (Code, sec. 1325), converting estates tail into estates in fee simple, has no bearing upon the principle of law decided in Shelley's case, for, as we have said, the rule of law established in that case prevailed before the act of 1784, and has always prevailed since. There was error in the ruling and judgment (191) of the court below, and the same is

Reversed.

Cited: Chamblee v. Broughton, 120 N.C. 175; Thompson v. Crump,138 N.C. 34; Sessoms v. Sessoms, 144 N.C. 125.