Opinion
(December Term, 1832.)
1. A deed to the children of A., reserving to him the use and benefit of the land, vests in him an estate for life.
2. A consideration of blood appearing upon a deed, inoperative as a bargain and sale, will make it inure as a covenant to stand seized.
3. One tenant in common may declare for all the joint estate, and recover his proportion.
THIS was an ejectment on the several demises of five persons as tenants in common, tried on the last circuit, before Strange, J., at ONSLOW.
J. H. Bryan for defendant.
Gaston contra.
It did not appear how all the lessors of the plaintiff claimed title, but the plaintiff declared for one hundred and thirty acres (412) of land, part of a tract of six hundred and forty acres, of which one Abner Battle and three others had been tenants in common. The plaintiff attempted to prove a partition between Battle and his co-tenants, but failed. Battle devised his land to his wife for life, with a remainder to his daughter Susannah, who married one Lot Humphreys. Humphreys and wife, in the year 1808 executed the following deed to their daughter Thirza, one of the lessors of the plaintiff:
"To all people, etc., know ye that we, Lot Humphreys and Susannah, his wife, for and in consideration of the love, good will and affection which we have and do bear towards our loving daughter Thirza, have given and granted to the heirs of her body, on the terms hereinafter particularly described, a certain tract of land which, etc. (setting out the above devises and descents and the boundaries of the land); and by these presents do give and grant freely the above-described and descended land, containing one hundred and thirty acres, to the said Thirza's body heirs, reserving particularly the use and benefit of said gifted land to said Thirza, discretionary in herself, whether or not, during her natural life, but should said Thirza Humphreys die, without leaving living heirs of her body, then the above gifted land shall return to her whole blooded brothers and sisters."
The defendant objected that Thirza Humphreys took nothing under this deed, but if she did, then he objected that as she had not declared as a tenant in common, with other cotenants of Abner Battle, and as the deed covered land held by him in common with others, she only acquired by the deed a right to Abner's undivided interest in the land described in the declaration, and could not therefore execute a lease which would enable her lessor to maintain this action. His Honor, however, thought that the deed from Humphreys and wife to Thirza took effect as a covenant to stand seized for her use either for life or in fee, and that it enabled her to make a lease of the one hundred and thirty acres, which would be good against all the world but her co-tenants.
(413) A verdict was returned for the plaintiff, and the defendant appealed.
Whether the deed accompanying the case is good as a covenant to stand seized is the first question to be determined. Uses may be raised upon what is called a good consideration, which is that of blood or marriage. Conveyances raising uses upon a good consideration are termed covenants to stand seized. The consideration of blood causes the operation of the conveyance. The words covenant to stand seized are therefore not essential to its validity. A conveyance in the form of, but void as a grant, feoffment or release, may still take effect as a covenant to stand seized. If the consideration appear, though it be not particularly expressed, yet it is sufficient to raise a use. Therefore, if a man covenant to stand seized to the uses of his wife, son, or cousin, without saying in consideration of the natural love which he bears towards them, the covenant will raise the use. Milboun v. Simpson, 2 Wils., 22; Bedell's case, 7 Co., 40; 2 Saun., 80, 81. A feme covert can stand seized to a use. 1 Saun., 56. In the case before us, Humphreys and wife in the deed express the consideration to be for the love and good will which they had for their daughter, Thirza Hatch. This consideration raised a use to her at least for life, by that part of the conveyance which follows, "reserving particularly the use and benefit of said gifted lands to the said Thirza, discretionary in herself, whether or not, during her natural life, but should said Thirza die, without leaving living heirs of her body, then the above lands to return," etc. The statute of uses executed the possession to the use, and the legal estate is as extensive as the use. It is unnecessary at present to determine whether the conveyance would be a good covenant to stand seized to the use of Thirza in fee tail, which by the Act of 1784 (414) (Rev., ch. 204), would be converted into a fee simple. As to the second question, we have always understood that one tenant in common may bring an ejectment, declaring upon a several devise of the whole tract of land, and recover possession of such an undivided portion of it as he proved title to on the trial. Whether the lessor of the plaintiff had been seven years in the adverse possession of the one hundred and thirty acres, under the deed from Humphreys and wife, so as to ripen her possession into a good title to the whole tract of land, does not appear; but from what does appear in the case, she is entitled to recover the undivided one-fourth part of the one hundred and thirty acres of land mentioned in the declaration, and for that portion the judgment below is affirmed.
PER CURIAM. Judgment affirmed.
Cited: Bruce v. Faucett, 49 N.C. 393; Exum v. Lynch, 188 N.C. 396.