(June Term, 1843.)
Where, in a deed for land, a life estate only is mentioned in the premises and habendum, this cannot be enlarged into a fee, either by a warranty in fee or by a covenant for quiet enjoyment to the grantee and his heirs.
APPEAL from Bailey, J., Spring Term, 1843, of HYDE.
The facts of the case, so far as they relate to the point decided in this Court, are sufficiently stated in the opinion of the Judge.
No counsel for the plaintiff.
J. H. Bryan for the defendant.
The lessor of the plaintiff claimed title to the land in dispute under a deed to his grandfather, John Mason, from David Jones, dated in 1793. In the premises of the said deed, Jones appears to "bargain, sell, set over and assign unto the said John Mason, a certain tract of land, etc." The words "and his heirs," are not superadded to the name of John Mason. The said words (his heirs) are also wanting in the habendum clause of the deed. But the covenant of warranty in the said deed is thus: "I, David Jones, do covenant and agree to and with the said John Mason to warrant and forever defend the aforesaid premises from me, my heirs and assigns unto him the said John Mason, his heirs and assigns forever." The words, heirs of the grantee, are in no part of the deed, except in the clause of warranty. From what appears in the premises and habendum of the deed, (380) John Mason had but a life estate in the land. And 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. Roberts v. Forsythe, 14 N.C. 26; Seymour's case, 10 Co., 97. The ancestor, John Mason, had but a life estate in the land; the lessor of the plaintiff therefore never had any interest in the same which he could lease.
There are several circumstances stated in the case, from which, perhaps, it might be argued that the defendant is estopped to deny the seizure in fee of John Mason. But we do not consider them at all, because the verdict is found subject to the opinion of the Court on certain points, beyond which we have not thought ourselves at liberty to go.
PER CURIAM. Affirmed.