(June Term, 1831.)
1. The word heirs is absolutely necessary in a grant to create a fee, as well in a deed at common law as in one operating under the statute of uses. (Changed by Code 1883, sec. 1280.)
2. A life estate is not enlarged into a fee either by a warranty in fee or by a covenant for quiet enjoyment to the grantee and his heirs.
EJECTMENT, tried before his Honor, Strange, J., on the fall circuit of 1830.
Devereux for defendant.
Badger and W. H. Haywood contra.
On the trial the lessor of the plaintiff claim title under a deed from one James Veazey to one William Jones, and by other mesne conveyances to himself. The defendant proved that William Jones was dead, and objected that the deed from Veazey to him created only an estate for the life of the vendee. This deed was in the usual form to the habendum, when it proceeded as follows: "To have and to hold the aforesaid land and premises, with all houses, orchards, etc., and all other and singular the improvements thereon, therein or thereunto belonging, or in any wise appertaining to the said land and premises, and he, the said J. V., doth hereby warrant and defend the said land from himself, his heirs, executors, administrators and assigns, and from all other persons lawfully claiming the said land, to him, the said W. J., his heirs and assigns forever."
A verdict was taken, subject to the opinion of the court upon the above-mentioned objection, and judgment having been rendered for the plaintiff, the defendant appealed.
It is a position disputed by no one that if it is intended to create a fee in the grantee, either by conveyance at common law or under the statute of uses, the conveyance must be made to the grantee and his heirs. If it be to the grantee, without superadding the word heirs, only a life estate passes. That appears to be the case in the deed from Veazey. The words heirs of the grantee are used in no part of the deed, except in the clause of warranty, or the clause for covenant of warranty. If it is considered as a warranty, although (27) the warranty is made to the grantee and his heirs, it cannot enlarge the estate before granted. Seymour's case, 10 Rep., 97. If it is considered as a clause for quiet enjoyment, there are no words in it importing a grant or transfer of anything, but only a guarantee of what has been granted. Nor can the difficulty be avoided by any fair transposition of the words or sentences in the deed. The meaning of the grantor cannot be better collected from the deed than by reading it naturally. It is very probable that he intended to convey the fee, but that intention cannot be collected from the deed.
PER CURIAM. Judgment reversed.
Cited: Snell v. Young, 25 N.C. 380; Armfield v. Walker, 27 N.C. 582; Register v. Rowell, 48 N.C. 315; Gray v. Mathis, 52 N.C. 504; Stell v. Barham, 87 N.C. 67; Allen v. Baskerville, 123 N.C. 127; Bond v. R. R., 127 N.C. 126; Coble v. Barringer, 171 N.C. 449.