DEN ON DEMISE OF BARCLAY G. BORDEN vs. ROBERT THOMAS.
A., by deed dated in the year 1790, in consideration of natural love and affection, &c. conveyed certain lands to his son B. “ to have and to hold, &e., unto the said B. his natural life only, and then to return to the male child or children of the said B., lawfully begotten of his body* — for the want of such, to return to the male children of my other sons, C. and D., to their proper use, benefit and behoof of him, them and every one of them equally, and to their heirs and assigns forever; and the said A. fo.r himself, &c., doth covenant and grant to and with the said B., his lawfully begotten male heirs, and, for want of such as aforesaid, with my other two sons, C. and D. and each and every of their male heirs, &c., that he, the said B. and his heirs as above-mentioned, if any, or otherwise his two brothers above-named, during their natural lives or life, and after them unto their male heirs, &c. shall and may lawfully, peaceably have, hold, &c.” Held, that this was a covenant by A. to stand seized to the use of B. for his life, and for any sou or sons of his after his death. If B.’s son.ivas born at the time the deed was executed, the remainder was then vested in him; if born afterwards, the seizin remaiuiug In the covenantor was sufficient to feed the contingent use when it came into esse, and enabled the statute of uses to transfer the equitable use into a legal estate in fee in remainder, B. having had a son, who survived him.
A warranty by a tenant for life is void against all persons, claiming in remainder or reversion ; and so are collateral warranties by an ancestor, as against his heirs at law, the ancestor having no estate of inheritance in possession.
Appeal from the Superior Court of Law of Carteret County, at the Fall Term, 1845, his Honor Judge Battle presiding.
This was an action of ejectment for the premises claimed in the declaration. The defendant entered into the common rule, and pleaded not guilty. The following case agreed was submitted to the Court. Both parties claimed under William Borden, Sen. William Borden, Sen., in the year 1790, made a deed, of which the following arc the substantial parts. By this deed, in consideration of love and affection, &c., he conveyed the premises in dispute to his son, William Borden, Jun., “ to have and to hold the same to the said William Borden, Jun. during his natural life only, and then to return to the *210male child or children of the said William Borden, Jun., lawfully begotten of his body — for the want of such, to return to the male children of Ms other sons, Benjamin and Joseph, to their proper use, benefit and behoof, of him, them and every of them equally, and to their heirs and assigns lore ver.” The will then goes on with clauses of warranty, &c. William Borden, Jun. died intestate, on the day of October, 1843, leaving him surviving the lessor of the plaintiff, Barclay D. Borden, his only son and heir at law, he having been the only male child of the said William Borden, Jun. born in lawful wedlock.
William Borden, Jun. in his lifetime, to-wit, on the 16th of September, 1815, by deed of that date, conveyed the premises in dispute to one James Porter, from whom the defendant deduced a regular paper title. This deed contained a covenant of general warranty against the grantor and his heirs. It was admitted that the defendant, and those under whom he claimed, had been in possession of the premises in dispute, from the time of the date of the deed to James Porter, to the time of the institution of this suit, and that the defendant still holds, and claims title to, the farm, under the said deed.
It is agreed, that the main question in this cause arises upon the construction of the deed from William Borden,. Sen. to William Borden, Jun.: the plaintiff contending, that, by the express terms • and conditions of the said deed, William Borden, Jun. only took a life estate in the premises, and, upon his death, the limitation over to the lessor of the plaintiff, Barclay D. Borden, he being the only male child of the said William Borden, Jun. took effect, and that, therefore, the said William Borden, Jun. could only convey a life estate to the purchaser from him. On the contrary, it is contended by the defendant, that the limitation in the said deed is too remoto, inoperative and void, and that the lessor of the plaintiff took no estate whatever under the said deed. It is further agreed, that, if his Honor should be of opinion, upon this *211statement, that the plaintiff is entitled to recover, judgment is to be entered for him — otherwise, for the defendant
His Honor being of opinion that tho deed from William Borden, Sen. to William Borden, Jun., conveyed only a life estate to William Borden, Jun., and that the limitation in the said deed to the lessor of the plaintiff was good and not too remote, and that, therefore, the plaintiff was entitled to recover, judgment was accordingly entered iu favor of the plaintiff From this judgment, tho defendant appealed.
I. II. Bryan and J. W. Bryan, for the plaintiff
No counsel for the defendant.
Daniel, .1.
The deed, executed in the year 1730, by William Borden, Sen. enured as a covenant to stand seised of the land, to the use of his son William Borden for life, remainder to ail the sons of William Borden in foe. If the. lessor of the plaintiff was born at the dale of the deed, his remainder was vested. If he was not then born., the ulteidor use was contingent, and became vested in him, immediately he was bom. For. the fee, remaining in the covenantor, William Borden, Sen. or his heirs, was a sufficient seizen, to feed the contingent use, whenever it came into esse, and enabled the statute of uses to transfer the equitable use into a legal estate in fee in remainder.
The above estates a,re to be found in the premises and habendum clauses of this very marlificially drawn deed. What follows the habendum in the deed does not affect 1 he extent of the estates before created; all that is. as to this party, but a covenant for quiet enjoyment. William .Borden, the tenant for life, in the year 1845, made a deed of bargain and sale in fee of the land, with a general warranty, to James Porter. This warranty descending upon the lessor .of the plaintiff, the heir at law of tho bar-gainor, is made void by the eighth section of the 43d ch, *212
lieu. $¿aé. which declares, that all warranties, which shall be made by any tenant for life of any lands, the same descending or coming to any person in reversion or remainder, shall be void and of no effect; and likewise all collateral warranties of any kinds by any ancestor who has no estate of inheritance in possession in the same, shall be void against the heirs. The lessor of the plaintiff bad no right to enter, anti! the death of the father, which happened in the year 1843.
AVe see no error in the opinion of his Honor, and the judgment must be affirmed.
Ter Curiaji. Judgment affirmed.