Fulbright v. . Yoder , 113 N.C. 456 ( 1893 )

The issue submitted, with the consent of all parties, was: "Were the words `in trust for the sole benefit of the said Z. T. McCaslin, his heirs and assigns, forever, in fee simple,' omitted from the habendum clause of the deed by mistake, inadvertence or oversight, as alleged in the answer?"

The deed in question was as follows:

"This deed, made 12 October, 1860, between Matthew McCaslin and wife, Margaret, of the first part, and J. C. McCaslin, agent of Z. T. McCaslin, of the second part, all of the county of Catawba and State of North Carolina:

"Witnesseth, that the said Matthew McCaslin and wife, for and in consideration of one dollar to them in hand paid, and of natural good will and affection, hath bargained and sold unto J. C. McCaslin, in trust for Z. T. McCaslin, all that tract or parcel of land on Potts creek in Catawba County (describing it), containing eighty-three acres — all woods, ways, waters and watercourses — unto the said J. C. McCaslin, agent, his heirs and assigns, forever. The said M. McCaslin and wife hath a right to convey the same, and by these presents doth convey the same in fee simple unto J. C. McCaslin, agent. Witness," etc. (Signed by Matthew McCaslin and wife.)

The deed was duly acknowledged in open court, and recorded, with the private examination of the wife.

His Honor told the jury that the defendant Henry McCaslin must satisfy them by "clear, strong and convincing testimony" (457) that the words "in trust for the sole benefit of the said Z. T. McCaslin, his heirs and assigns forever, in fee simple," had been omitted from the habendum clause in the deed by mistake, inadvertence or oversight, as alleged in the answer.

That if he had done so, they should answer the issue "Yes"; otherwise, "No."

The jury returned for the verdict "Yes." Judgment was rendered for the defendants and the plaintiffs appealed. The case of Holmes v. Holmes, 86 N.C. 205, is similar to the one before us, and, according to the principles there laid down, Z. T. McCaslin took an equitable fee, although words of inheritance were omitted in the limitation. It is therefore unnecessary to pass upon the sufficiency of the evidence offered for the purpose of correcting the deed. While it must be admitted that the doctrine of the above-mentioned case is not supported by text-writers or the previous decisions of this Court, yet it is believed to be founded upon more equitable principles in arriving at the real intention of the grantor. It is also in accord with the spirit of recent legislation (The Code, sec. 1280) which declares that limitations without the use of the word "heirs" shall be construed as limitations in fee, unless a contrary intention plainly appears. In view of these considerations we do not feel inclined to overrule the said decision. Its application to this case, as well perhaps to the great majority of others, very clearly gives effect to the true intention of the parties.

Affirmed.

Cited: Clark v. Cox, 115 N.C. 96; Helms v. Austin, 116 N.C. 753;Allen v. Baskerville, 123 N.C. 127; Smith v. Proctor, 139 N.C. 320.

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