#### W. L. BAGGETT et al. v. D. D. JACKSON et al.

(Filed 30 October, 1912.)

1. Partition — Dower—Procedure—Interpretation of Statutes.

Partition o£ lands and the allotment of dower therein may be liad in the same proceedings. Revisal, sec. 2517.

2. Partition — Petition — Necessary Parties — Deemed Immaterial— Procedure — Costs.

The presence of an unnecessary party, in proceedings for partition of lands, will be regarded as immaterial, except as affecting costs.

3. Partition — Clerk—Superior Court — Transfer in Term — Jurisdiction.

The Superior Court acquires jurisdiction over proceedings to partition lands upon their being transferred by the clerk thereto, in term, and may proceed therewith and fully determine all matters in controversy.

4. Partition — Life Estate — Remaindermen—Actual Division — Interpretation of Statutes.

Revisal, sec. 2508, provides, among other things, that “The existence of a life estate in any land shall not be a bar to a sale for partition of the remainder or reversion thereof, and for the purposes of partition the tenants in common shall be deemed seized and possessed as if no life estate existed. But this shall not interfere with the possession of the estate”: Hold, that by the change in the terms from “a sale for partition” to the “purposes of partition,” with the cautionary provision that it shall not interfere with the possession of the life tenant, it is construed to Include actual partition by the remaindermen, as well as sale for division by them.

5. Deeds and Conveyances — Interpretation—Intent.

In construing a deed to lands, form must yield to substance, and the intent of the parties should be ascertained as embodied in the deed, giving effect to each and every part thereof if it can be done by any fair and reasonable construction.

6. Deeds and Conveyances — interpretation—Life Estates — Reservation in Deed.

In a deed to lands only a remainder passes to the grantee, by the grantor and his wife therein using the expression, “We do except our lifetime on said lands.”

*277. Deeds and Conveyances — Infants—Voidable Deeds — Reasonable Time — Affirmance.

A deed to lands made by an infant is voidable only and not void, and lie is held to bis election to affirm or disaffirm tbe conveyance witbin a reasonable time after becoming of age; and it is held in this case that three years Is a reasonable time within which he must act. Weeks v. Wilkins, 134 N. C., 521, cited and applied.

Appeal by defendant from Oa-rter, J., at August Term, 1912, of Sampson.

This proceeding was commenced before the clerk, and on issue joined was transferred to the Superior Court at term to be tried.

The petitioners are seven children of Charles Baggett, including Anson Baggett, who allege that as heirs of Charles Baggett they are tenants in common of two tracts of land, one containing 42 acres and the other 11% acres, subject to the dower right of the widow of Charles Baggett, the defendant M. A. Baggett.

They further allege that Anson Baggett is not entitled to any part of said land, because he had been fully advanced by the conveyance to him by Charles Baggett and wife of 42 acres of land, not described in the petition; that the other defendant, D. D. Jackson, who is the son of M. A. Baggett by a former marriage, has no interest in said land; that he and his mother axe in possession of all of said land, and that this possession is wrongful as to all except so much thereof as may be set apart for dower; and they ask that the dower be allotted and the land divided, subject to the dower, into six shares, one share to be assigned to each of the petitioners except Anson Baggett, who joins in the petition.

The defendants deny the material parts of the petition, and allege that the defendant M. A. Baggett is the owner of a life estate in said land, and that the defendant D. D. Jackson is the owner in fee of the remainder.

When the proceeding was called for trial, and before any evidence was introduced, the defendants moved to dismiss, “for that this court has no jurisdiction to hear this proceeding, as it was started before the clerk for partition, and plaintiffs allege that they are not in possession of said land.” His Honor overruled the motion, and defendants excepted.

*28It was admitted that prior to 24 August, 1897,. Charles Bag-gett was the owner in feo of the land described in the petition, and that the petitioners are his heirs, and the defendant M. A. Baggett his widow.

On 24 August,. 1897, the said Charles Baggett and wife, M. A. Baggett, conveyed said land in fee to the defendant D. D.'Jackson, by deed, in which appears the following clause, immediately after the description of said land: “We do except our lifetime on said land.”

On 13 July, 1906, the said D. D. Jackson and wife executed a deed to the said Charles Baggett, by which they purported to reconvey said land to him in fee, which deed was duly registered on 15 August, 1906.

It was also admitted that D. D. Jackson became twenty-one years of age on 19 September, 1908; that Charles Baggett died on 10 June, 1910, and that this proceeding was commenced on 27 September, 1911.

The defendant Jackson testified as follows: “I was living with Charles Baggett when he died; made a crop there that year. Frank Williams stayed there 1909. I helped-him once in a while when wanted. I lived on Mr. Martin Tew’s land. I helped wait on Charles Baggett until his death. I left once for nine months; first at Robert Jackson’s place, and then in Johnston County. In that time I did not work on the land; but I went with Charles Baggett to see a doctor and paid the doctor’s bill.. While I was off, my brother stayed there, and I went back. Charles Baggett knew I was going, and did not object. When I went off this time, two of the girls were married and moved off. Only one single, and she married during that nine months. A few years later I moved off on Mr. Tew’s place, and tended one crop and moved back. I gave in the land for taxes after Charles Baggett died, and paid the taxes since.”

Cross-examination: “I used what was made in 1910, supporting the family. I shot Mr. Aulsey Tew’s hog and paid him $5 for it, and left and went to Johnston County. I came back a great many times.”

Redirect examination: “I administered on Charles Baggett’s estate. Mr- Cooper was my lawyer. I paid all fhe heirs their part of the personal property.”

*29There was no evidence of a disaffirmance of the deed of D. I). Jackson other than that set out. •

His Honor being of opinion that the defendant M. A. Baggett was not the owner of a life estate under the exception in the deed from Charles Baggett and wife, but was entitled to dower, and that the defendant Jackson having failed to disaffirm his deed for three years after he became twenty-one years of age, before the commencement of this proceeding, directed the jury to so find, and the defendants excepted.

Judgment was rendered declaring the interests of the parties and appointing commissioners to allot .dower and to divide the lands.

The defendant again excepted, upon the ground that, if the plaintiffs had any interest in the land, it was a remainder interest after a life estate, and that such interest was not the subject of an actual partition.

George F. Butler for plaintiffs.

Faison & Wright for defendants.

AlleN, J.

The motion to dismiss was made before the introduction of.evidence, and was necessarily based on the allegations of the petition, which is fully authorized by the provisions of section 2517 of the Eevisal, allowing dower to be allotted and a partition among tenants in common in the same proceeding. The presence of the other defendant, Jackson, if not shown to be a necessary party by the petition, was immaterial except as affecting costs. Ormond v. Insurance Co., 145 N. C., 142.

If, however, the proceeding was improperly instituted before the clerk, to which we do not give our assent, when it was transferred to the Superior Court in term, that court had jurisdiction to fully determine all matters in controversy. Faison v. Williams, 121 N. C., 153; Roseman v. Roseman, 127 N. C., 496; Luther v. Luther, 157 N. C., 502; Williams v. Dunn, 158 N. C., 402.

Ve are also of opinion that his Honor held correctly that, although the defendant M. A. Baggett might be the owner of a life' estate in the lands described in the petition, the petitioners could havé actual partition of the remainder. The law was *30otherwise prior to chapter 214 of Laws 1887, section 2 of which is copied in section 2508 of the Revisal, which reads as follows: “The existence of a life estate in any land shall not be a bar to a sale for partition of the remainder or reversion thereof, and for the purposes of partition the tenants in common shall be deemed seized and possessed as if no life estate existed. But this shall not interfere with the possession of the life tenant during the existence of his estate.”

The first part of the section is susceptible of the construction contended for by the defendants, that it applies only to cases of sales for partition and not to actual partition, but the change in the use of terms in the statute from “a sale for partition” to “purposes of partition,” and the cautionary provision, “But this shall not interfere with the possession of the life tenant during the existence of his estate,” shows that it was intended to cover both sales for partition and actual partition, and it has been so held. Gillespie v. Allison, 115 N. C., 544.

In the Gillespie case there was-a life estate in two tracts of land, and the judge of the Superior Court ordered a sale of one tract, because in his opinion this course would be beneficial to the parties, and an actual division of the other, and on appeal this Court said: “The second section provides for the actual partition of the other tract, not to interfere with the possession of the life tenant or her assignee during the existence of her .estate.”

This brings us to the consideration of the effect of the clause in the deed of Charles Baggett and wife, M. A. Baggett,. to D. D. Jackson, “We do except our lifetime on said land,” and of the subsequent deed of Jackson to Charles Baggett.

We have recently held in a number of eases that in the construction of deeds form must yield to substance; that the end to be attained is fo find the intent of the parties as embodied in the deed, and that effect must be given to each and every part of the deed, if this can be done by any fair and reasonable construction (Davis v. Frazier, 150 N. C., 451; Triplett v. Williams, 149 N. C., 394; Acker v. Pridgen, 158 N. C., 337; Midgett v. Meekins, post, 42), and we have applied the rule to *31clauses in deeds very much like tbe one before us. In re Dixon, 156 N. C., 26; Thomas v. Bunch, 158 N. C., 179.

In tbe last case, tbe clauses in tbe deed in tbe Dixon case and in tbe Thomas case are set out, and tbe conclusion reached by tbe Court stated as follows: “Language of similar import and almost identical witb that in tbe deed before us was considered in tbe case of In re Dixon, 156 N. C., 26, and it was there held that tbe grantee took an estate in remainder after tbe death of tbe husband and tbe wife. In this deed tbe language is, ‘and a life estate is hereby reserved by said Asa Cooper and S. A. Cooper, bis wife/ and in tbe deed in tbe Dixon case, ‘I, tbe said E. A. L. Carr, reserving a life interest for myself and wife, Sarah A. L. Carr, in tbe above described land/ and it was said in tbe latter case: ‘The reservation in tbe deed is valid, and said deed did not become effective till after tbe death of tbe grantor and his wife’; and again: ‘Construing the whole deed as written, there is here a reservation of the whole for tbe life of tbe grantor and bis wife, witb remainder in fee to their daughter.’ If there is any difference in tbe meaning of tbe clauses in tbe two deeds, there is stronger reason for saying that tbe deed in this case conveys an estate in remainder to tbe grantee, because in tbe deed in tbe Dixon case tbe husband alone was the grantor, and a life interest was reserved, while in this tbe husband and wife are tbe grantors, witb the reservation of a life estate. . . . "We conclude that a life estate was reserved to Asa Cooper and S. A. Cooper, and that Charles B. Bunch was, at tbe time of bis death, tbe owner of an estate in remainder, tbe said S. A. Cooper being then alive, and that tbe widow of said Bunch is not entitled to dower or a homestead therein.”

In tbe case before us, tbe use of tbe words “we” and “our” clearly indicate an intent to reserve a life estate for tbe bus-band and wife, which should not be defeated by construction, but sustained.

Tbe deed of Jackson to Charles Baggett, Jackson being under twenty-one years of age at tbe time of its execution, was not void, but voidable, and tbe law required of him that be should disaffirm it within three years after be became of age; otherwise be was bound by it as an executed conveyance. Weeks v. Wilkins, 134 N. C., 521.

*32The rule is not unjust to the infant, because be is given ample opportunity after be attains bis majority to let it be known that be repudiates bis deed, and it is necessary for the protection of purchasers, as the infancy of a grantor in a deed is not disclosed by the record.

In Weeks v. Wilkins, supra, the question is fully considered and Justice Connor quotes with approval section 91, vol. 1, Dev-lin on Deeds, that, “The most reasonable rule seems to be that the right of disaffirmance should be exercised within a reasonable time after the infant attains bis majority, or else bis neglect to avail himself of this privilege should be deemed an acquiescence and affirmation on bis part of bis conveyance. The law considers bis contract a voidable one, on account of its tender solicitude for bis rights and the fear that be may be imposed upon in bis bargain. But be is certainly afforded ample protection by allowing him a reasonable time after be reaches bis majority to determine whether be will abide by bis conveyance, executed while be was a minor, or will disaffirm it. And it is no more than just and reasonable that if be silently acquiesces in bis deed and makes no effort to express bis dissatisfaction with bis act, be should, after the lapse of a reasonable time, dependent upon circumstances, be considered as fully ratifying it.”

Again, on page 624, be considers the effect of the pendency of a life estate, and says: “But it is said that Mrs. Hester Weeks owned the life estate, and that, pending such estate, be bad no right of action to sue for the possession of the land. We do not think this material. His right to disaffirm bis deed was entirely independent of bis right to the possession of the land. He could easily have disaffirmed by returning the purchase money or by some other unequivocal act which would have put innocent purchasers on notice. He could have brought bis action to remove a cloud from bis title, under Laws 1893, cb. 6.”

Upon an examination of the record we find no disaffirmance of bis deed by Jackson, and bold that be is bound by it.

There are several exceptions in the record, which we have examined, but it is not necessary to discuss them, as the facts set out are determinative of the rights of the parties.

*33Tbe decree entered in tbe Superior Court will be modified in ■ accordance witb tbis opinion, by adjudging tbat M. A. Raggett is tbe owner of a life estate in tbe lands described in tbe petition, and, as tbus modified, it is affirmed.

Modified and affirmed.