#### PERRY v. HACKNEY.

(Filed October 23, 1906).

Deeds — Effect of Alterations — Bule m Shelley’s Case — Use, Benefit and Profit of Land.

1. Where a deed conveying land to P was acknowledged by the grantor, and afterwards the name of the original grantee was stricken, out and that of his wife inserted without the consent or knowledge of ' the grantor, and, in this form, it was registered, the altered deed was not binding on the grantor and did not transfer any title to the wife.

2. In an action of ejectment by the wife, to which her husband was made a party only pro forma, where there was no allegation in the complaint of any title in him, he was not entitled to recover on proof that the equitable title to the land was in him.

3. Where a testator devised to his granddaughter “the use and benefit and profit” of his land during her natural life, and to the lawful heirs of her body after her death, the words are sufficient to> pass an estate in the land, the Rule in Shelley’s case applies and the granddaughter acquired a fee-simple.

*369ActioN by J. W. Perry and wife against Spencer Hackney, beard by Judge Fred. Moore and a jury, at tbe May Term, 1906, of the Superior Court of Chatham.

The feme plaintiff sued to recover a tract of land, and her husband was joined with her pro forma, there being no allegation in the complaint of his title or right of possession. The sole allegation was that the wife owned the land and was entitled to the possession thereof, and the prayer was that she be declared to be the owner and that she 'recover the possession. It is presumed, of course, that the case was tried upon the only issue raised by the pleadings, the issue upon which it actually was tried not being set out in the record. It was admitted that Stepheness Chambless owned the land, and that he died leaving a will by which he devised it in the following terms: “I will and bequeath unto Nancy Richardson the use and benefit and profit of all my estate, real, personal and mixed, of every species and description whatever, during her natural life, and to the lawful heirs of her body after her death.” Nancy was his granddaughter. She died about six years ago, leaving her surviving three children, John, Hannah and Sarah. Hannah conveyed the land to J. W. Perry, one of the plaintiffs, by deed dated Y August, 18Y8, and sufficient in form to pass the entire estate in the premises. This deed was acknowledged by the grantor, and afterwards the name of J. W. Perry, the original grantee, was stricken out and that of his wife, M. E. Perry, inserted without the consent or knowledge of the grantor, and, in this form, it was registered. There was testimony as to the possession of the property, which need not-be stated, as in the view taken of the case it has become immaterial. There was evidence that Nancy Richardson conveyed the land to Elizabeth Hackney, mother of the defendant. The plaintiff introduced the will of Stepheness Chambless and the deed of Hannah J. Richardson in'evidence. The Court held that the deed did not convey any title to the feme plaintiff and, on motion, dis*370missed tbe action, under tbe statute. Tbe plaintiff excepted and appealed.

Womach, Hayes & Bynum for tbe plaintiff.

H. A. London & 8on for tbe defendant.

WalkeR, J.,

after stating the case: Tbe first question raised is tbe sufficiency of tbe deed of Hannah Jane Richardson to pass title to tbe feme plaintiff. Tbe deed was originally made to John W. Perry, bis name was erased and that ,of bis wife inserted in its place, and, as thus altered, it was registered. Tbe deed, therefore, which was made to John W. Perry, has never been registered, and tbe deed which was registered was not tbe one made by Hannah Jane Richardson. A deed presupposes a contract, and, indeed, is itself an executed contract, passing tbe equitable title after delivery and before registration, tbe latter taking tbe place of livery of seizin to the grantee, and after registration tbe seizin or legal estate also passes. Davis v. Inscoe, 84 N. C., 396; Hare v. Jernigan, 76 N. C., 471; Respass v. Jones, 102 N. C., 5. Tbe deed before registration may be redelivered or surrendered, as tbe cases we have already cited show, and a deed made by the grantor to a new grantee, at tbe request of tbe first grantee, if there is no fraud or other vice in tbe transaction. But that is not our case. A contract' requires tbe assent of two minds to one and the same thing, and so, as to a deed, says Blackstone, for it is essential to its validity that there should be parties able and willing to contract and be contracted with for tbe purposes intended by tbe deed and a thing or subject-matter to be contracted for, all of which must be expressed by tbe parties in their deed. It therefore follows- that there must be a grantor, a grantee and a thing granted, and in every lease, a lessor, a lessee and a thing demised. 2 Bile., 295-7. Consent, which is the vital element of every contract, is wanting here. Hannah J. Richardson *371never agreed to be bound by a conveyance to tbe person whose name was inserted in the deed after its execution by her. She had an undoubted right to determine, by the exercise of her contractual right of selection, to whom she would convey the land. There is another reason why the deed to the feme is not good. A deed must always be consummated by delivery, which is the final act of execution, and this delivery must be either actually or constructively made by the grantor to the grantee. There has been no delivery by the grantor to Mrs. Perry. The only contract so far as she is concerned, if there was any at all, was between her husband and herself, and the only delivery by him to her, and that even was not the delivery of a deed, in the sense of the law, but of a paper-writing having no legal efficacy as an instru-

ment passing title. We, therefore, hold that the deed to J. W. Perry, when altered by the insertion of his wife’s name, was not binding on the grantor, and did not transfer any title to her. Jones v. Respass, supra; Hollis v. Harris, 96 Ala., 288; Hill v. Nesbit, 58 Ga., 586. The deed was afterwards restored to its original form by the reinsertion of the name of J. W. Perry. It may be that he could have recovered on his equitable title, if this was his suit, and he had properly pleaded and relied on his title. Murray v. Blackledge, 71 N. C., 492; Condry v. Cheshire, 88 N. C., 375 ; Farmer v. Daniel, 82 N. C., 152. Put it is in fact his wife’s suit, to which he is made a party only pro forma, and there is no allegation in the complaint to which proof of his equitable interest can apply. It is familiar learning that there must be allegation as well as proof, and they must correspond. There was no request for an amendment, if one could have been allowed under the circumstances, which we do not decide.

This disposes of the appeal and affirms the judgment, but the counsel have asked us to pass upon the other question as to the construction of the will of Stepheness Ohambless, in *372order to prevent further litigation. As we have a decided opinion upon that matter, we will do so, for it may enable the parties to adjust their differences.

The appellant contends that only a life-estate was given to Nancy Richardson by the will, as the land was not devised, but merely its “use, benefit and profit,” and for this reason the Rule in Shelley’s case does not apply. We think the words are sufficient to pass the estate in the land and that the Rule does apply. The words “all my rents” were held sufficient to pass real estate; for it was said to be according to the common phrase, and usual manner of some men, who name their lands by their rents. 3 Gr. Cruise (2 Ed.), p. 229 (7 Cruise, 176). So a devise of the “rents, issues and income” of lands was held to pass the land itself. Anderson v. Greble, 1 Ashmead, 136. A person having let several houses and lands for years, rendering several rents, devised as follows:' “As concerning the disposition of all my lands and tenements, I bequeath the rents of D to my wife for life, remainder over in tail.” The question being whether, by this devise, the reversions passed with the rents of the lands, it was resolved that they did, as that was clearly the intention, and the will should be construed according to the intent to be gathered from its words. Kerry v. Derrick, Crokes Jac., 104; Allan v. Backhouse, 2 Ves. & B., 74. A devise of the income of land was held to be in effect a devise of the land, Reed v. Reed, 9 Mass., 372; so a devise of the “rents, profits and residue” of the testator’s estate received a • like construction. Den v. Drew, 14 N. J. L., 68. In Parker v. Plummer, Cro. Eliz., 190, a devise in the following words: “I will that my wife shall have half the issues and profits of the land during her life,” the question being whether she had any interest in the premises or was only entitled to have an account of rents. It was determined that she had an estate, “for- to have the issues and profits and the land were all one,” and the same was held with respect to a devise of a “moiety *373of tbe rents, issues and profits of my estate,” tbe words being equivalent to a devise of tbe estate in fee. Stewart v. Gannett, 3 Sim., 398. See, also, Beekman v. Hudson, 20 Wend., 53; Cook v. Gerrard, 1 Saund., 186c; Whiltome v. Lamb, 12 M. & W., 813; Mannox v. Greener, L. R., 14 Eq., 456. Tbe language of this will is much stronger to show an intention to devise tbe land itself than was tbat used in any of tbe cases cited. It appears tbat be gave to tbe heirs of her body precisely tbe same interest tbat be gave to tbe life-tenant. If be intended tbat they should have tbe corpus, why should not tbe mother also have it, by tbe same construction of bis words ? Tbe law searches for tbe intention of tbe testator and executes it when discovered, without any special regard to tbe particular manner of expressing it, testators generally being inops consilii. In this case, there is no reference to tbe corpus, either in tbe first or second limitation, but each, as to tbe subject of tbe devise, is couched in tbe same terms. No trustee is appointed to bold tbe legal title, and it cannot be supposed tbat tbe testator intended tbe legal title to remain in bis beirs forever for tbe “use, benefit and profit” of those named in tbe will. Those words are appropriate in law, as tbe authorities show, to create a beneficial interest in tbe land, and show clearly an intention to do so. There is no apparent reason for keeping tbe legal and beneficial interest apart, and we must presume tbat they were intended to go together to the object -of tbe testator’s bounty. But if tbe testator ever withheld tbe legal estate and it descended to bis beirs, be used words fit, and sufficient in law, to raise a use in favor of bis granddaughter, Nancy Eichardson. Wby did not tbe statute execute tbe use by drawing tbe legal title to it and thus unite tbe two estates, so as to form what is called in Fleta tbe only perfect title (Fit juris et seisince con-junctioj % 2 Blk., 311.

Not only does tbe very language of tbe will, when considered in its ordinary sense, clearly indicate a purpose to give *374both the legal and beneficial interest to the devisee, but the inference thus drawn from it is in accordance with the interpretation of the law. “In the construction of wills, adjudged cases may very properly be argued from, if they establish general rules of construction, to find out the intention of the testator, which intention ought to prevail if agreeable to the rules of law.” Goodlittle v. Whitby, 1 Burrows, 233. We think those rules, as well as the proper understanding of the words used, justify our construction of the will. The law carries into effect the intention of the testator, if sufficiently expressed, however defective the language may be. This is one of the rules of construction. The case of Floyd v. Thompson, 20 N. C., 616 (4 Dev. & B., 478), seems to be directly in point, as the language is substantially identical with that of the devise in question. There the property was limited to the use and benefit “of the legatees for life, and then to 'descend’ to the heirs of their body,” and the words were held to denote that the heirs took in succession from and not merely after the first taker. Ruffin, C. J"., added: “If the subject here had been land, the daughter, first taker, would undoubtedly have the fee, and we think less than the entire property in the slaves will not satisfy the words.” To the same effect are Donnell v. Mateer, 40 N. C., 7; Worrell v. Vinson, 50 N. C., 91; King v. Utley, 85 N. C., 59; Ham v. Ham, 21 N. C., 598. In the case last cited the subject is fully discussed and the authorities collated by Daniel, J. The conclusion is, therefore, irresistible, that the testator used the words “use, benefit and profit” as synonymous with the land itself. 3 Gr. Cruise, p. 229; 2 Underhill on Wills, sec. 692.

Having settled this point, it is not difficult to decide that the Rule in Shelley’s cáse applies to the limitation. It is within the very words of the Rule, for where the ancestor, by any gift or conveyance, takes an- estate of freehold, and in the same gift or conveyance an estate is limited, either medi-*375ately or immediately to his heirs, in fee or in tail, always, in such case “tire heirs” are words of limitation of the estate, and not words of purchase; and superadded words of limitation, not varying the course of descent, do not prevent the application of the rule. Shelley’s case, 1 Coke, 104. The rule applies only where the same persons will take the same estate, whether they take by descent or purchase, in which case they are considered to take by descent. Ward v. Jones, 40 N. C., 400; Howell v. Knight, 100 N. C., 257. They who take in remainder, must take in the quality of heirs according to the course of descent established by law. The rule is one of law, and not merely one of construction for the purpose of ascertaining the intention, and when the words of the limitation bring the case within the rule, it applies, regardless of the intent, or, if expressed differently, the intention is presumed to be in accordance with that which the law implies from the use of words having a fixed and definite meaning. Leathers v. Gray, 101 N. C., 162; Wool v. Fleetwood, 136 N. C., 460; Tyson v. Sinclair, 138 N. C., 23; Pitchford v. Limer, 139 N. C., 13. Under the devise in this will, the limitation over carries the estate to the same parties, whether they take by descent or by purchase, and the words “heirs of the body” are therefore words of limitation, and not words of purchase, as those so designated are presumed to take by descent in the quality of heirs. May v. Lewis, 132 N. C., 115; Mills v. Thorne, 95 N. C., 362. It follows that Nancy Eichardson acquired a fee-simple under the devise. If she conveyed to Mrs. Iiaclmey, her daughter, Hannah J. Eichardson, got nothing by descent, and her deed to J. W. Perry consequently passed nothing to him. She had nothing to grant. But if she had not parted with her title and died intestate, her three children took from her by descent, as tenants in common. We do not know what are the facts, as they were not found, the case having been taken from the jury. There is no error in the ruling of the Court.

No Error.