#### B. H. STOKES v. J. J. DIXON.

(Filed 2 November, 1921.)

Estates — Restraint Upon Alienation — Fee Simple — Deeds and Conveyances.

Where a life estate is given to B., and then to Ms heirs, after a reservation of a life estate in the grantor, “with no right to him to convey the same,” the attempted restraint upon alienation of the estate is void, and it being the same as an estate to B. and Ms heirs, B. takes a fee simple after the falling in of the previous life estate, and may then convey the fee.

Appeal by defendant from Lyon, J., at the October Term, 1921, of CRAVEN.

Submission of controversy without action. C. S., 626.

The facts agreed are as follows:

1. That B. H. Stokes is in possession and claims title to two certain tracts of land described in a deed dated 11 March, 1910, which reads as follows:

State of North CAROLINA — -Craven County.

This deed, made this 11 March, 1910, by E. B. Stokes and wife, Eebecca Stokes, of Craven County and State of North Carolina, of the first part, to B. H. Stokes, of Craven County and State of North Carolina, of the second part:

Witnesseth, that the said E. B. Stokes and Eebecca Stokes, his wife, in consideration of parental love, and one dollar to them paid by the said B. H. Stokes, the receipt of which is hereby acknowledged, have *324bargained and sold, and by these presents do bargain, sell, and convey to the said B. H. Stokes and his heirs and assigns two certain tracts or parcels of land in No. 1 Township, Craven County, State of North Carolina, described as follows: . . .

With the exception the said R. B. Stokes reserves his life estate in the above two described tracts of land and the timber on the same. Also, if R. B. Stokes dies before his wife, Rebecca Stokes, she, the said Rebecca Stokes is to have and to hold a life estate in the home place or first tract above described, it being the home place, the said Rebecca’s life estate to cease in case she marries again. The said home place, it being the first tract described above, is hereby given to the said B. H. Stokes during his natural life, and then to his heirs with no right to him, the said B. H. Stokes, to convey the same; also, that he is to have no part in any future division of the said R. B. Stokes land.

To have and to hold, the aforesaid tract or parcel of land, and all the privileges and appurtenances thereto, belonging to the said B. H. Stokes, and his heirs and assigns, to their only use and behoof forever.

And the said R. B. Stokes and Rebecca Stokes covenant to and with the said B. II. Stokes, and his heirs and assigns, that they are seized of the said premises in fee, and have a right to convey the same in fee simple; that the same are free and clear from all incumbrances, and that they will warrant and defend the said title to the same against the claims of all persons whatsoever.

In testimony whereof, the said R. B. Stokes and Rebecca Stokes have hereunto set their hands and seals, the day and years first above written.

R. B. X Stokes. [seal.]

Rebecca Stoices. [seal.]

Verified 11 March, 1910.

2. That R. B. Stokes and Rebecca Stokes are both dead.

3. That B. H. Stokes and J. J. Dixon have entered into an agreement by which the said J. J. Dixon agreed to purchase the said land and pay therefor the sum of $6,800, and B. H. Stokes agreed to sell said land and convey a good and indefeasible title in fee simple.

4. That B. II. Stokes has tendered to said J. J. Dixon a deed conveying the said land with the usual covenants of warranty, purporting to convey a fee-simple estate, and that J. J. Dixon has refused to accept said deed or pay for the land for the reason that he is advised that said B. H. Stokes cannot convey a good title.

Upon the facts agreed, his Honor rendered judgment declaring the plaintiff the owner in fee of the tracts of land described in the deed, with right to convey to the defendant a title in fee simple. The defendant excepted and appealed.

*325 Moore & Dunn for plaintiff.

Whitehurst & Borden for defendant.

Adams, J\

E. B. Stokes, one of tbe grantors, reserved a life estate for bimself in tbe two tracts of land described in tbe deed, and in case bis wife Eebecca survived bim, a life estate for ber in tbe first tract, known as tbe “borne place.” Both E. B. Stokes and bis wife are dead, and tbe reservation of tbe life estate, for tbe present purpose, is inoperative. Tbe controversy, therefore, depends upon tbe proper construction of tbe following paragraph: “The said home place, it being tbe first tract described above, is hereby given to tbe said B. H. Stokes during bis natural life, and then to bis heirs, with no right to bim, tbe said B. H. Stokes, to convey tbe same.” Tbe clause purporting to restrain tbe grantee’s right of alienation is repugnant to tbe estate conveyed, and is void as in contravention of public policy. Munroe v. Hall, 97 N. C., 209; Hardy v. Galloway, 111 N. C., 520; Pritchard v. Bailey, 113 N. C., 521; Latimer v. Waddell, 119 N. C., 370; Wool v. Fleetwood, 136 N. C., 461; Schwren v. Falls, 170 N. C., 251. Tbe grantors, then, conveyed tbe borne place to B. H. Stokes during bis natural life, and then to bis heirs, and thereby vested in their grantee a fee simple under tbe rule in Shelley's case. Tucker v. Williams, 117 N. C., 119; Nichols v. Gladden, ib., 498; Tyson v. Sinclair, 138 N. C., 24; Smith v. Smith, 173 N. C., 124; Nobles v. Nobles, 177 N. C., 243.

Tbe judgment is

Affirmed.