{ "id": 8654510, "name": "JOHN M. FLEMING et al. v. A. H. MOTZ", "name_abbreviation": "Fleming v. Motz", "decision_date": "1924-04-16", "docket_number": "", "first_page": "593", "last_page": "595", "citations": [ { "type": "official", "cite": "187 N.C. 593" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "118 N. C., 139", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "137 N. C., 207", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "135 N. C., 171", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "66 N. C., 327", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11277120 ], "opinion_index": 0, "case_paths": [ "/nc/66/0327-01" ] }, { "cite": "126 N. C., 408", "category": "reporters:state", "reporter": "N.C.", "weight": 2, "opinion_index": 0 }, { "cite": "93 N. C., 442", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274058 ], "opinion_index": 0, "case_paths": [ "/nc/93/0442-01" ] }, { "cite": "153 N. C., 50", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "124 N. C., 163", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658299 ], "opinion_index": 0, "case_paths": [ "/nc/124/0163-01" ] }, { "cite": "129 N. C., 55", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "7 N. C., 98", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8684399 ], "opinion_index": 0, "case_paths": [ "/nc/7/0098-01" ] }, { "cite": "172 N. C., 671", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11255245 ], "pin_cites": [ { "page": "674" } ], "opinion_index": 0, "case_paths": [ "/nc/172/0671-01" ] }, { "cite": "93 N. C., 214", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273115 ], "pin_cites": [ { "page": "221" } ], "opinion_index": 0, "case_paths": [ "/nc/93/0214-01" ] }, { "cite": "14 N. C., 394", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8696261 ], "opinion_index": 0, "case_paths": [ "/nc/14/0394-01" ] } ], "analysis": { "cardinality": 422, "char_count": 6800, "ocr_confidence": 0.459, "pagerank": { "raw": 1.1186401424219824e-07, "percentile": 0.5728623560678634 }, "sha256": "fdf5f3ee95d1dca3a0637a502e35a120a5f889cc289dccb345168bcf3a78393c", "simhash": "1:862caee4c77b2a97", "word_count": 1209 }, "last_updated": "2023-07-14T20:05:52.896945+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JOHN M. FLEMING et al. v. A. H. MOTZ." ], "opinions": [ { "text": "Adams, J.\nThe defendant requests our consideration of only two exceptions. The first involves a determination of the question whether by the ninth item of the will the testatrix intended to preserve the devised property as a home for her three sons so long as any one of them lived; and if this question be resolved against the defendant, it seems to be conceded that the devisees acquired the fee as tenants in common, subject to the contingency of a reversion to the \u201cliving ones if either son died.\u201d Southerland v. Cox, 14 N. C., 394; Rowland v. Rowland, 93 N. C., 214, 221.\nThe devise was not intended as an absolute restraint on alienation. If either son died his share was to \u201crevert\u201d to the survivors, and a sale was to be made by the mutual consent of the three sons if living, or evidently by tbe two surviving if one died before tbe conveyance was executed. We therefore do not concur in tbe suggestion that it was tbe purpose of tbe testatrix to keep tbe place as \u201ca home for all\u201d until tbe death of tbe last survivor.\nAbout three months after Robert\u2019s death bis surviving brothers conveyed to bis widow, Mrs. Nannie Hunt Eleming, a one-third undivided interest in tbe home, and on 14 June, 1921, Mrs. Fleming conveyed her interest to Paul Callen in consideration of one hundred dollars and maintenance during her natural life. Tbe defendant contends that tbe consideration of maintenance creates a charge upon tbe interest conveyed by her, and that subsequent purchasers took Callen\u2019s title cum onere.\nIn Bailey v. Bailey, 172 N. C., 671, 674, tbe grantor conveyed certain tracts of land \u201cin consideration of $791, and nay maintenance during my natural life\u201d \u2014 almost tbe identical language employed in tbe deed before us. Tbe court, noting tbe distinction running through several of our decisions, held that tbe consideration created a charge upon tbe land, and said: \u201cTbe meaning and effect of a provision for maintenance, frequently found in deeds and wills, have received different constructions, depending on tbe placing of tbe provision and upon other terms of tbe instrument in which it appears. In some of tbe cases it is dealt with as a personal covenant (Taylor v. Lanier, 7 N. C., 98; Ricks v. Pope, 129 N. C., 55; Perdue v. Perdue, 124 N. C., 163; Lumber Co. v. Lumber Co., 153 N. C., 50), in others as constituting a charge on tbe rents and profits from tbe lands (Gray v. West, 93 N. C., 442; Wall v. Wall, 126 N. C., 408), and in others as a charge on tbe land itself (Laxton v. Tilly, 66 N. C., 327; Helms v. Helms, 135 N. C., 171).\u201d\nIn Laxton v. Tilly and in Helms v. Helms tbe consideration was similar to that mentioned in tbe deed to Paul Gallen, and in tbe latter case Mr. Justice Connor said that tbe wording of tbe deed did not constitute a condition subsequent, a breach of which entitled tbe grantor to avoid tbe deed, but operated rather as a covenant to furnish support, a breach of which constituted a charge upon tbe land. See, also, tbe same case on a rehearing reported in 137 N. C., 207.\nAccording to these authorities tbe provision for maintenance incorporated in tbe deed executed by Mrs. Fleming constitutes a charge upon tbe interest therein described and is enforceable not only against her immediate vendee, but against tbe subsequent purchasers who acquired their title with actual or constructive notice of tbe charge. Outland v. Outland, 118 N. C., 139; Wall v. Wall, supra.\nFor this reason tbe judgment of bis Honor is\nReversed.", "type": "majority", "author": "Adams, J." } ], "attorneys": [ "P. W. Glidewell for plaintiff.", "E. F. Upchurch for defendant." ], "corrections": "", "head_matter": "JOHN M. FLEMING et al. v. A. H. MOTZ.\n(Filed 16 April, 1924.)\n1. Wills \u2014 Devise\u2014Power of Sale \u2014 Deeds and Conveyances \u2014 Title.\nA devise of the testatrix of her home to her. three sons, who survived her as her only heirs at law, upon condition that it be kept as a home for all, except in the event they fully consented to sell it, and upon the death of one of them his share to revert to the living ones for an equal division: Held, the controlling intent of the testatrix was not to make an absolute restraint on alienation, or to continue the home until the death of the last survivor, but that upon the death of one the house could be sold and conveyed with the consent of the surviving sons.\n2. Deeds and Conveyances \u2014 Consideration\u2014Support of Grantor \u2014 Covenants \u2014 Charge Upon Land \u2014 Subsequent Grantees \u2014 Notice.\nA conveyance of land upon consideration of the grantee maintaining the grantor for life is a covenant charging the land therewith, and is binding not only on the grantee, but as a charge upon his successors in title who take by deed with actual or constructive notice thereof.\nAppeal by defendant from Lyon, J., at the Special November Term, 1923, of Caswell.\nMrs. Jasper Fleming died in 1918 leaving a will, tbe ninth, item of which is as follows: \u201cI desire the home to be kept \u00e1s a home for all, unless it is thought best to sell, and then with the full consent of my three sons. If either son dies I do not want the home sold but let their share revert to the living ones. But if by mutual consent of my three sons a sale is made it shall be equally divided between the three sons.\u201d The three sons who survived the testatrix were John M. Fleming, Robert Fleming, and Paul Fleming, her only children and heirs at law. On 4 February, 1921, Robert died leaving a widow and two children, namely, Mrs. Nannie Hunt Fleming (widow), John M. Fleming, Jr., and Mrs. Evelyn Callen, wife of Paul Callen, as his only heirs. John M. Fleming, Jr., is a minor under twenty years of age, without general or testamentary guardian, and is represented in this cause by his next friend. After the death of Robert Fleming, to wit, on 27 April, 1921, John M. Fleming and Paul Fleming and his wife conveyed a one-third undivided interest in the devised land to Mrs. Nannie Hunt Fleming, widow of Robert Fleming, and on 14 June, \u00cd921, Mrs. Fleming conveyed said one-third undivided interest to Paul Callen, her son-in-law, in consideration of $100 and maintenance during her natural life. This deed was registered 2 August, 1921. On 22 August, 1921, Paul Callen and his wife conveyed said interest to John M. Fleming, Sr. On 12 October, 1923, John M. Fleming, Sr., and Paul Fleming offered the entire property for sale by public auction, and the defendant became the last and highest bidder at $6,000, which was acceptable to John M. Fleming, Sr., and Paul Fleming. Since said sale John M. Fleming, Sr., Paul Fleming and wife, and John M. Fleming, Jr., have executed and tendered a deed for said property to the defendant, and he has declined to accept it on .the ground that a good and indefeasible title cannot be conveyed by said parties. The trial judge held that they could convey a good and indefeasible title, and the defendant excepted and appealed.\nP. W. Glidewell for plaintiff.\nE. F. Upchurch for defendant." }, "file_name": "0593-01", "first_page_order": 663, "last_page_order": 665 }