#### HUTTON & BOURBONNAIS COMPANY v. WOOD HORTON, LARKIN HORTON, CHARLIE HORTON, and ROBERT WELCH.

(Filed 26 November, 1919.)

1. Estates — Deeds and Conveyances — Remainders—Intent—Children—Rule in Shelley’s Case.

In order to effectuate the intention of the grantor as gathered from the terms employed in his deed to lands, it is Held, that by a conveyance thereof “to the use of the party of the second part for the term of his natural life, and from and after the termination of his estate, then to all his children born or to be born, and their heirs forever,” a life estate was. granted with remainder to the children “born or to be born,” of the first taker, the word “children” not being in the sense of heirs, and the rule in Shelley's case does not apply.

2. Estoppel — Judgments—In Pais — Partition—Estates—Remainders.

Where under a mistake of law the life tenant and remaindermen join in proceedings to> partition lands among themselves as tenants in common, the parties thereto are estopped by the judgment therein to set up their title against a purchaser at the sale; and one not a party thereto is. estopped in pais by his conduct in having been employed as a chain bearer in making the survey of the separate portions of the land, pointing out to-the purchaser the part he was buying, and without asserting his own • title thereto.

*5493. Deeds and Conveyances — Probate—Judicial Sales — Title—Equity.

Objection to the probate and registration of a deed made under order of court, that therein the commissioners to sell were not sufficiently identified, the defect may be cured by a later probate of the clerk of the Superior Court; and where the record of the proceedings identify the commissioners, the purchaser acquires an equitable title, which he may enforce in his action.

4. Issues — Trespass.

In an action of trespass on lands, an issue is sufficient which has afforded the excepting- party an opportunity of having the jury assess any damages for any trespass that the opposing party may have unlawfully committed.

5. Actions — Counterclaims—Subject-matter.

In an action involving title to lands, the defendant may not set up, as a counterclaim, alleged acts of trespass on other of his lands, the subject-matter of the counterclaim being different from and not connected with the cause being tried.

Civil ACTION for trespass upon a certain tract of land, tried before Long, J., at May Term, 1919, of Oaldwei/l, upon these issues:

“1. Is tbe defendant, Wood Horton, estopped by tbe record in Wilkes Superior Court from claiming title to tbe 95-acre tract described in tbe complaint? Answer: ‘Yes.’

“2. Are tbe defendants, Wood Horton and Larkin Horton, estopped from claiming title to tbe 95-acre tract by reason of tbeir representation and conduct? Answer: ‘Yes.’

“3. Are tbe plaintiffs owners of tbe 95-acre tract described in tbe complaint,’or any part thereof? If so, what part? Answer:‘All.’

“4. Have tbe defendants trespassed upon tbe 95-acre tract? Answer: ‘Yes.’

“If so, what damages have plaintiffs sustained by reason of tbe said trespass ? Answer: ‘One cent.’

“6. Did tbe plaintiff trespass upon any lands belonging to tbe defendants embraced in tbe 95-acre tract and cut and remove timber therefrom? Answer: ‘No.’

“I. If so, what damages has tbe defendant sustained by reason of said trespass? Answer: ‘Nothing.’”

From judgment rendered tbe defendants appealed.

Oouncill & Yount and Marie Squires for plaintiff.

W. G. Newland, R. N. Hackett, and Gharles G. Gilreath for defendants.

Beown, J.

It is admitted that David E. Horton, prior to 12 October, 1866, owned all tbe lands in controversy in fee simple. On said date be Executed a deed to David L. Horton, containing tbe following clause:

*550“To tbe said party of tbe first part for tbe term of tbeir natural lives, and tbe life of tbe survivor, remainder, after tbe death of tbe survivor, to tbe use of tbe party of tbe second part, for tbe term of bis natural life, and from and after termination of bis estate, tben to all bis children born or to be born, and tbeir heirs forever.”

David L. Horton died about five years ago, having bad seven children born to him, to wit: J. W. Horton, called Wood Horton; Charlie and Larkin Horton (these three are defendants in this action), Julia, Mary Lou (yet living), Tillman, and Sallie, who are now dead.

Prior to tbe death of David L. Horton, and on 22 September,. 1902, be, together with bis brothers and sisters who were tben living, together with tbe children of a dead sister, and bis son, Wood Horton (J. W. Horton in tbe petition), and Gr. W. Bradley, filed a petition in tbe Superior Court of Wilkes County asking for a sale for partition of certain lauds lying in Wilkes and Caldwell counties, including tbe lands described in tbe complaint, designated in tbe petition as tbe first tract. Tbe petition set forth tbe interests of each party in said lands, and embraced tbe tract of land containing 95 acres, more or less, described in tbe complaint. Tbe petition set forth tbe interest of Wood Horton and Gr. W. Bradley as one-twelfth each of tbe fifth tract bought from David L. Horton, which fifth tract is not connected with this action, but tbe defendant, Wood Horton, although a party to tbe said special proceedings, did not tben contest tbe title to tbe said 95 acres described in tbe petition and being tbe land in controversy.

Tbe land was purchased by plaintiff and. T. B. Finley and F. B. Hen-dren, tbe commissioners appointed to sell tbe land, were directed to execute a deed therefor to tbe plaintiff.

Tbe defendants excepted to tbe ruling of tbe court that tbe deed from David E. Horton to David L. Horton conveyed an estate in fee. If that ruling is correct, tben tbe plaintiffs would be entitled to recover the whole of tbe land described in tbe complaint, and tbe finding of tbe jury under tbe third, issue as instructed by the court would be correct.

We are of opinion, however, that under tbe decisions of this Court, tbe rule in Shelley’s case does not apply, and that David L. Horton took only a life estate with tbe remainder to bis children. In tbe clause in the deed the intent of tbe grantor, we think, is plainly manifest; after reserving a life estate, to convey tbe land to David L. Horton for tbe term of bis natural life, and tben in specific language, after tbe termination of tbe life estate, tben to all of David L. Horton’s children, born or to be born, and tbeir heirs forever. It is plain that tbe word “children” is not used in tbe sense of heirs. J ones v. Whichard, 163 N. C., 243; Powell v. Powell, 168 N. C., 561; Williams v. Williams, 175 N. C., 163.

*551While the trend of the courts indicate an undoubted tendency of the judicial mind to follow the intention of the grantor, and whenever he means to limit an estate to the heirs of the life tenant an estate of inheritance will vest in the tenant for life, but that intention must be manifest that he intended to convey an estate which would vest in the grantee’s heirs'. In the deed under consideration the intention is manifested in express words to limit the estate of the grantee to the term of his natural life, and then to convey the property in fee to all the children bom, or thereafter to be born.

We think, however, that his Honor’s ruling is correct that the defendant, Wood Horton, is estopped by the record of the special proceeding in Wilkes Superior Court from claiming title to the 95-acre tract described in the complaint.

It is true, as claimed by the defendant, that the petition sets forth the interest of each party in the lands described therein, and alleged the interest of Wood Horton to be one-twelfth of the fifth tract of land bought from David L. Horton, which tract is not in controversy in this action. But Wood Horton was a party to that proceeding, and had an opportunity to assert his title to the lands described in the petition, and especially to the 95 acres now in controversy. He made no claim to it and it was put up and sold under the judgment of the court, and Wood Horton is bound by it. Weston v. Lumber Co., 162 N. C., 180; 169 N. C., 398; Propst v. Caldwell, 172 N. C., 596. The defendants excepted to the submission of the second issue and the ruling of the court thereon. This relates to the estoppel in pais pleaded against the defendants, Wood Horton and Larkin Horton.

The petition in the special proceeding under which the lands claimed by thq plaintiff were sold, asked for the appointment of a surveyor to survey and locate the lands, the survey was made and the lands located as sold to the plaintiff. Larkin Horton was one of the chain bearers when this land was surveyed and located under the special proceedings, . and the cost of the survey, including the amount due him as chain bearer, was paid out of the sale of the lands.

The witness, T. H. Broyhill, testified that these two defendants showed him around the lands and pointed out the lines from papers and grants they had at the time, and as the lands so pointed out were the lands claimed by the plaintiff, and in pursuance of what they said to him he bought it. In his charge on this issue his Honor simply stated the contentions of the' parties and defined an estoppel of this kind, and left it to the jury to find the fact and answer the issue accordingly. They answered the issue in favor of the plaintiff. The defendants excepted to the ruling of the court upon the sufficiency of the deed from Finley and Hendren, commissioners. It appears that T. B. Finley and F. B. *552Hendren sold the land in controversy to tbe plaintiffs at public sale, wbicb was duly confirmed, and executed a deed therefor in the name of Finley and Hendren, commissioners, which was first recorded in 1906, and again in 1918, prior to the trial. The defendant’s exception relates to the 1906 probate and registration, which, if defective, was cured, we think, by the 1918 probate and registration, to which no objection is made and no exception taken, except as to the names of Finley and Hendren.

The probate to the deed is as follows:

North Carolina — Wilkes County.

. I, C. H. Somers, clerk of the Superior Court of Wilkes County, North Carolina,- do hereby certify that T. B. Finley and F. B. Hendren, attorneys at law, practicing under the firm name and style of “Finley & Hen-dren,” being the same persons by whom the foregoing deed was executed, as commissioners, personally appeared before me this day and acknowledged the due execution by them of the foregoing deed as such commissioners. And I do further certify that I was clerk of the Superior Court on 15 May, 1906, and prior thereto, and do here now find as a fact that the said T. B. Finley and F. B. Hendren were the identical persons appointed by me as commissioners in the special proceeding referred to in the said foregoing deed. Let the instrument and certificate be registered.

Witness my hand .and official seal of office, this 28 November, A. D. 1918. . C. H. Somees,

Clerk Superior Court, Wilkes County.

The report of the sale is made in the name of and by Finley & Hen-dren, commissioners. The final decree states that, “This matter coming on to be heard upon the report of Finley & Hendren, commissioners, appointed to sell lands described in the petition, it is ordered that the said commissioners make and deliver a deed to Hutton & Bourbonnais for said lands.”

■ A seal in behalf of the commissioners is attached to the original deed.

We think the identity of the commissioners executing the deed as T. B. Finley and F. B. Hendren, who were appointed as such, is fully established by the evidence introduced on the trial, as well as by the certificate of the clerk on the second registration of the deed. In any view of the matter, this deed, taken in connection with the special proceeding record, conveys to the plaintiff such an equitable title as would enable it to maintain, an action for the land. Institute v. Norwood, 45 N. C., 65; Simmons v. Allison, 118 N. C., 763; Daniels v. R. R., 158 N. C., 427.

The exception to the issues cannot be sustained.

*553The issues submitted afforded the defendants the opportunity to have the jury pass upon any claim they might have to any portion of the land claimed by plaintiff, as well as the opportunity of having the jury assess any damages for any trespass that the plaintifE might have unlawfully made on said land. Kirk v. R. R., 97 N. C., 82; McAdoo v. R. R., 105 N. C., 140; Paper Co. v. Chronicle, 115 N. C., 147.

The defendants, in their answer under the head of new matter, and by way of counterclaim, attempted to set up a claim for damages for an alleged trespass at different times on lands outside of the 95 acres claimed by plaintiff, which counterclaim, on objection by plaintiff, was excluded by the court from the consideration of the jury on the ground that it did not arise out of the cause of action on which the plaintiff based its action, and on account of.the fact that there was no sufficient evidence to establish such a claim.

There was no evidence of the cutting of timber on any lands except those in dispute, but if there was a trespass on other lands, that would not be a'cause of action arising out of the transaction that is the subject of the complaint. The plaintiff's action was to try title to a 95-acre tract described in the complaint. The trespass, if any, that the plaintiff committed on other lands, not in controversy, claimed by defendants, had no connection with the title to the lands put in issue in the complaint. This matter was not connected in any way with the cause of action set out in the complaint, and the demurrer was properly sustained. Bazemore v. Bridges, 105 N. C., 191; Smith v. Young, 109 N. C., 224; Street v. Andrews, 115 N. C., 417.

Upon a careful review of the entire record, we find no error committed as to the defendants Wood Horton and Larkin Horton. As to the defendant Charlie Horton, who was not a party to the special proceeding, and is not estopped in any way so far as the record discloses, we think the plaintiff failed to make out title as to him. The action is dismissed as to Charlie Horton and Robert Welch, who will recover their costs against plaintiff in the Supreme and Superior Courts. As to Wood Horton and Larkin Horton, the judgment is

Modified and affirmed.