#### FRANK P. THERRELL et al. v. W. S. CLANTON et al.

(Filed 30 June, 1936.)

Deeds C c — Deed in this case held to create right of reversion in grantor and not contingent remainder in grantor’s heirs.

The deed in this case conveyed the land to a husband and wife by entirety, with remainder to their children in fee, with further provision that in the event the husband and wife had no children, “then the estate in fee simple forever to the right heirs” of the grantor. Thereafter the husband and wife conveyed the land and their grantor joined with them in executing the deed. The husband and wife died without children, and the heirs of the original grantor instituted this action for the land. Held: The deed did not create a contingent limitation in favor of the heirs of the grantor, but created the right of reversion in her upon the happening of the contingency, and her heirs have no interest in the land, their claim being by way of inheritance and not by purchase, and their ancestor having previously conveyed her right of reversion by joining in the deed executed by the husband and wife.

Appeal by plaintiffs from Small, J., at July Special Ter.m, 1935, of MecKleNbueg.

No error.

Tbis is an action to recover possession of a lot or parcel of land situate within the corporate limits of the city of Charlotte, in Mecklenburg County, North Carolina, and described in the complaint by reference to a deed recorded in the office of the register of deeds of Mecklenburg County, in Book No. 60, at page 378.

It is alleged in the complaint that plaintiffs are the owners in fee and are entitled to the immediate possession of the land described in the complaint, and that the defendants are in the wrongful and unlawful possession of said land. These allegations are denied in the answer.

The facts shown by the evidence at the trial are as follows:

On 9 June, 1888, by deed duly executed by her, Mary E. Parker conveyed the land described in the complaint to W. H. Gilmore and Frances E. Gilmore, as follows: “To W. H. Gilmore and Frances E. Gilmore an estate for their joint lives and for the life of the survivor of them, with remainder after the determination of the life estate herein granted to the children of Prances E. Gilmore upon her body begotten by the said ~W. H. Gilmore, in fee simple, forever, and in the event that Frances E. Gilmore should have no children of her body by the said W. H. Gilmore, then the estate in fee simple forever to the right heirs of Mary E. Parker.”

This deed was duly recorded in the office of the register of deeds of Mecklenburg County, on 16 June, 1888, in Book No. 60, at page 378.

*392On 1 September, 1904, by deed duly executed by them, W. H. Gilmore and bis wife, Frances E. Gilmore, and Mary E. Parker conveyed tbe land described in tbe complaint to W. 0. Maxwell in fee simple, and in said deed covenanted and agreed with tbe said W. 0. Maxwell tbat they were seized in fee of tbe said land, and bad tbe right to convey tbe same in fee, and tbat they would warrant and defend tbe title to tbe same against tbe claims of all persons whomsoever. In this deed reference is made to tbe deed executed by Mary E. Parker to W. H. Gilmore and Frances E. Gilmore, dated 9 June, 1888, and recorded in Book No. 60, at page 378, in tbe office of the register of deeds of Mecklenburg County.

This deed was duly recorded in tbe office of tbe register of deeds of Mecklenburg County on 3 September, 1904, in Book No. 192, at page 222.

On 4 July, 1906, by deed duly executed by them, W. C. Maxwell and bis wife, C. B. Maxwell, conveyed tbe land described in tbe complaint to W. 8. Clanton in fee simple. In this deed reference is made to tbe deed from W. H. Gilmore and bis wife, Frances E. Gilmore, and Mary E. Parker to "W. C. Maxwell, dated 1 September, 1904, and duly recorded in the office of tbe register of deeds of Mecklenburg County, in Book No. 192, at page 222.

This deed was duly recorded in tbe office of tbe register of deeds of Mecklenburg County, in Book No. 212, at page 451.

On 9 April, 1914, by deed duly executed by them, pursuant to a final order and judgment in a special proceeding pending in tbe Superior Court of Mecklenburg County, entitled “W. S. Clanton et al. v. Corneil C. Clanton et <ú.” W. S. Clanton and bis wife, M. A. Clanton, conveyed tbe land described in tbe complaint to tbe children of W. S. Clanton, in fee simple, subject to an estate for bis life in said land, which was expressly reserved to tbe said W. S. Clanton. In this deed reference is made to tbe deed from W. H. Gilmore and bis wife, Frances E. Gilmore, and Mary E. Parker to W. C. Maxwell, dated 1 September, 1904, and duly recorded in tbe office of tbe register of deeds of Mecklenburg County, in Book No. 192, at page 222.

This deed was duly recorded in tbe office of tbe register of deeds of Mecklenburg County, on 20 April, 1914, in Book No. 322, at page 534.

Frances E. Gilmore, wife of W. H. Gilmore, was tbe only child of Mary E. Parker, who is dead. At her death she left surviving both her said daughter, Frances E. Gilmore, and her husband, W. H. Gilmore. W. II. Gilmore is dead. At bis death be left surviving him bis wife, Frances E. Gilmore, who died on 14 June, 1934. She bad no children begotten upon her body by her husband, W. II. Gilmore. She did not remarry after bis death and left no children, or issue surviving her at her death.

*393On 9 June, 1888, tbe date of ber deed to W. H. Gilmore and bis wife, Frances E. Gilmore, Mary E. Parker bad brothers and sisters living. Tbe plaintiffs are tbe issue of sucb brothers and sisters, living at tbe death of Frances E. Gilmore, or grantees of sucb issue.

Tbe issue submitted to tbe jury was as follows :

“Are tbe plaintiffs tbe owners in fee and entitled to tbe possession of tbe land described in tbe complaint?”

Tbe plaintiffs, in writing and in apt time, requested tbe court to instruct tbe jury as follows:

“Gentlemen of tbe jury, tbe court charges you that upon tbe whole evidence, if you believe tbe evidence, you should answer tbe issue ‘Yes.’ ”

To tbe refusal of tbe court to so instruct tbe jury, tbe plaintiffs duly excepted.

Tbe court then instructed tbe jury as follows:

“Gentlemen of tbe jury, if you believe all tbe evidence, and believe it to be true by its greater weight, you will answer tbe issue No.’ ”

Tbe plaintiffs duly excepted to this instruction.

In accordance with tbe instruction of tbe court, tbe jury answered tbe issue “No.”

Prom an adverse judgment, tbe plaintiffs appealed to tbe Supreme Court, assigning as errors tbe refusal of tbe court to instruct tbe jury as requested by tbe plaintiffs, and tbe instruction of tbe court to the jury in its charge.

Ryburn & Hoey and Hal B. Adams for plaintiffs.

John M. Robinson and Hunter M. Jones for defendants.

Connor, J.

In support of their assignments of error on their appeal to this Court from the judgment of the Superior Court in this action, the plaintiffs contend that under the deed executed by Mary E. Parker, dated 9 June, 1888, upon the death of Prances E. Gilmore leaving surviving her no child begotten upon her body by her husband, ~W. H. Gilmore, an estate in fee simple in the land described in the complaint vested in the heirs of Mary E. Parker, deceased, living at the death of Frances E. Gilmore, as a remainder created by said deed, and that all the evidence at the trial showed that the plaintiffs and those under whom they claim are such heirs of Mary E. Parker, deceased. This contention cannot be sustained.

The provision in the deed that “in the event Frances E. Gilmore should have no children of her body by the said W. H. Gilmore, then the estate in fee simple forever to the right heirs of Mary E. Parker,” does not create a contingent remainder. At most, it creates a reversion in the grantor, Mary E. Parker, which was subsequently conveyed by her to W. C. Maxwell, under whom the defendants claim.

*394In King v. Scoggin, 92 N. C., 99, it is said: “It is true, remainders are created by deed or writing, but the estate is sometimes created so that what is called a remainder is, in effect, only a reversion; as, for instance, where an estate is given to one for life, remainder to the right heirs of the grantor (2 Washburn Beal Property, 692; Burton Beal Property, 51), and this must be the kind of remainder classed with reversions which go to the donor or to him who can make himself heir to him; but it cannot be that when the owner in fee conveys it by deed or will, to one for life and after his death to another in remainder in fee, the estate could under any circumstances return to the donor, for he has parted with all his interest, and under the rule as laid down in Lawrence v. Pitt, 46 N. C., 344, the person who claims the estate must make himself heir to the remainderman, who is the first purchaser of the remainder, because being the first purchaser of the remainder, he thereby becomes a new stirpes of the inheritance.” See Grantham v. Jinnette, 177 N. C., 229, 98 S. E., 724; and Thompson v. Batts, 168 N. C., 333, 84 S. E., 347.

The plaintiffs claim the land described in the complaint as heirs of Mary E. Parker. They therefore claim by descent and not by purchase. Yelverton v. Yelverton, 192 N. C., 614, 135 S. E., 632. As their ancestor, Mary E. Parker, before her death, had conveyed the land to W. 0. Maxwell, by deed dated 1 September, 1904, and duly recorded in the office of the register of deeds of Mecklenburg County on 3 September, 1904, the plaintiffs are hot now the owners of said land and entitled to its possession.

There was no error in the refusal of the trial court to instruct the jury as requested by the plaintiffs, or in the instruction given by the court to the jury.

The judgment is affirmed.

No error.