#### Pearse and others vs. House.

Tj'JECTMENT. In the year 1751, John Harrell conveyed -*-i to his four sons, Esaias, Ezekiel, David and Josiah, 640 acres of land, called the Runnery Marshes, in the county of Benie; 160 to each by a deed in the following words, to wit: 4 Know all men by these presents, that I, John Harrell, senior, 1 of Bertie county, for the love and good will I have unto my 4 four sons, David Harrell, and Esias Harrell, and Josiah Har-4 rel, and Ezekiel Harrell, do give, grant, and confirm unto 4 them my four sons above mentioned, one certain tract of land 4 and plantation, situate, lying and being in Bertie county, and ? in aplace commonly known and called by the name of Runne-c Xy Marshes, containing by estimation, six hundred and forty 4 acres of land, and plantation ; which land and plantation Í give 4 and grant unto them my four sons above mentioned, unto them 1 and unto their lawful heirs lutvfully begotten of their body or 4 bodies : and I lend unto all these my sons’ wives, that now is 4 my sons’ wives above mentioned, or hereafter is these my 4 sons’ wives above named, that is, David, Esias, Josiah and * Ezekiel, each woman the use of what land I gave her husband ; * to have and to hold, possess and enjoy peaceably and quietly 4 without any interruption by or from any of my family ; that 4 they may peaceably enjoy what part of the land belonged to 4 their own husband during their natural life or widowhood ; 1 and after her or their deceases or marriage, for want of such 4 heirs as above mentioned, that part of the land to be sold to them, 4 one or more of my sons that is then living, or their ¡awful heirs 4 of their own body or bodies, as shall give most for the piece of 4 land and plantation ; and they that are then living, of these my 4 sons above mentioned, or for want of them, any one or more of s ibñr lawful heirs of their bodies,, may execute a deed of sale for *387* the land and plantation in some court of record held for tbs 4 county j the sale shall be deemed good inlaw. And like-4 wise, if any one or more of my sons above mentioned is wil-4 ling to seil their part of the land that I gave them, and will sell 4 their part of the land so given by me, to any one or more of their 1 brother or brothers, his conveyance recorded iu court, shall be 4 deemed good and sufficient in law, as if it had been their own. 4 purchase ; which land, already laid off by lines of marked trees 4 to every and each of my sons as above named í And I do by 4 force and virtue of these presents, give, grant and possess them 4 my four sons and their wives with the above said land and 4 premises ; to have and to hold the said land and plantations, 4 with ail privileges therein or thereto belonging, or any wise 4 appertaining therenuio, excepting of oar privileges, that is, 4 me myself and their own mother, to either land range or tim-4 her, for our own use, during our natural lives % and as to what 4 cypress timber there is on er upon the said tract of land, they 4 four have and také and malte use of each and every one as they 4 have occasion, for their own houses, or other house ware, or 4 ñats or canoes, or what other use they may or shall have occaei-4 on-thereof:- and Ido hereby force and virtue of these prescnís¡> 4 give, grant, alien and convey all and singular my right and title 4 of the above demised land and premises unto the said David 4 Karrel, and Esias Harrel, and Josiah Harrell^ and Ezekiel 6 Harrell, unto them and their heirs above mentioned- forever, 4 observing the rights and privileges above mentioned to myself 4 and their mother and their wives during their natural lives or 4- widowhood as above said; One hundred and sixty acres ofc 4 land and plantation, be the same more or according unto the 4 bounds already marked- by me, each of them my sons, one 4 hundred and sixty acres land and plantation as above said ; and 4 if any one or more of them should die without such heirs as above 4 said, their part of the land to be sold to any one or more of (hem. 4 my jour sons here above mentioned; and the money to be equ■ Uy 4 divided amongst them that are living, of them four above wienti-4 onedt-=And I likewise give and grant unto my con Israel Har-4 dy Harrell, the plantation whereon I now live, and all the land 4 adjoining thereunto, after my decease and. the decease of his 4 mother; and unto him and his heirs forever, three hundred acras 4 of land and plantation, be the same more or less, according to 4 the bounds already made hy me. In witness wheseoí, I have 4 hereunto set- my hand &- fir.ed my seal, this 13th of May, 1751»

4 JOHN HARRELL. (Seal,)

4 Signed, sealed'and delivered T in presence of J

*1 likewise give unto my two sons> Eaelriel Harrell and Israel *388‘ Hardy Harrell, one hundred* acres of land nigh the head of ‘ Jumping Run : fifty acres a piece after our decease, to them ‘ and their heirs forever. ' J. Harrkix.”

At May term of the county court of Bertie, 1751, John Har-rel, in open court, acknowledged this deed ; and it was ordered to be registered, and it was registered.

Esias died before the year 1758, leaving a son, Esias, who died an infant and without issue ; and also a daughter, Sarah, who married the defendant, and died without issue in the year 1772 ; at which time, Esekiel and David were also dead, and none of the grantees were alive except Josiah, who died in 1773. He commenced an action of ejectment in 1772, in the month of October, which abated by his death, He left femal issue married at the time of his death, who died married, leaving some of the plaintiffs infants of tender years, who did not arrive at the age of twenty-one years till within three years next before the commencement of this action. Noah, a son of David, one of the grantees, commenced an action of ejectment for the same lands, or some part thereof, in 1782, and was non-suited not long af-terwards.

Browne and Woods for the plaintiffs.

The intention of this deed is to give the land to those of the grantees who should be surviving on the failure of the issue of any of the four sons ; and Josiah answers that description. *A grant of the profits of lands, vests the lands themselves in the grantee: So does a grant of the monies to be produced by a sale of lands where the monies are to belong to one person.

The act of limitations will not bar his issue, because he commenced an action immediately after the death of Sarah j and tho’ it abated and was not revived, yet we have a good excuse for not reviving. Those on whom the title descended, on the death of Josiah, were under disabilities from the time of his death, till lately. And moreover, the defendant, House, purchased of George, the heir at law of the grantor, who had not any title j and the defendant knew when he purchased from him that he had not; and such a purchase with a deed under it, cannot make a colour of title. It is like Farmer’s case in 3 Coke’s Rep. 77.

Haywood, for the defendant.

There is no estate tail created by this deed: the words empowering each of the sons to sell, are incompatible with an estate tail; and they are not to be rejected for repugnance, because they do not diminish the quantum of estate given before to the grantee, but enlarge it. Like an estate for life to the grantee, habendum to his heirs. If it were to his heirs hobendum for life, the latter would be rejectable, because against the estate before granted, and to the prejudice of grantee; whereas those words are to be adhered to which are most fevorable to the grantee. If the words in question be not reject-*389able, then those which make the estate inheritable are to be preserved, and those which would create an estate unknown to the law, rejected j like a limitation to one and his heirs male, an estate cannot by the rules of law descend to heirs male j but here it was meant that the estate should be inheritable ; and as it cannot be inherited as the grantor has mentioned, the part repugnant to law shall be rejected, which is the word males ; and the rest shall stand, which makes a fee. So here the estate is intended to be an inheritable one, and alienable ; and it cannot be both, if the words of the body be retained; therefore they shall be rejected, and then the estate will be a fee. The consequence is, there can be no such remainder as the plaintiffs claim. But if this be an estate tail, then what is the limitation over? It is either a povoer to sell or a remainder„ Consider the limitation over as a remainder, it must be a contingent one ; for in the contemplation of the grantor, the grantee might sell and destroy it ; the estate tail might last till after the death of all the grantees ; all or some, or one only, might be alive at the determination of the estate tail; it could not be known till that period arrived, which of the sons, if any, would be entitled ; the land is to go to him or them who would give most. If it was a contingent and not a vested remainder, then it was not connected with the estate tail, so as to take effect eo instanti ; that it determined for that one of his sons who would give most could not be known till the sale took place, after the determination of the estate tail; and that point time, if separated for one day or one week from the instant of the determination of the estate tail, might be separated for twenty years; for so long the sale might be delayed. And shall the freehold be so long in abeyance ? when the law will not allow it to be in abeyance at all ? They say events have happened which do connect it; for that Josiah was the person entitled, and was ready to take on the determination of the estate tail. Admit this for argument sake: can a subsequent event make good a limitation void in its creation ? If the fee was to vest in the purchaser, then he could not be known till after the determination of the precedent estate. If it was to vest in such of the sons as were to be entitled to the money raised by a sale of the lands, then Josiah was the surviving son entitled to the money, and of course, according to this position, to the land ; and so the fee vested in him eo instanti, that Sarah’s estate tail ended. How is it proved that those who were by the deed entitled to the money the land was to be sold for, were entitled to the land itself? It is proved, say our opponents, by this, that a grant of 'she profits of land, is a grant of the land. I admit it; but why is it so ? Because if A is to take the profits he must have the land to take them from. This forbids the idea of the lands going into ether hands; but if he is to take the money produced by *390 a sale, the lands must go from him, must be alienated to produce the money: the foundation of the cases is not the tame, but dissimilar in every thing. Admit however, that Josiah, because he was entitled to tne money, was also entitled to the land, which was to be sold to raise the money. Then the act of limitations began to run upon him, from the dav of death of Sarah, in 1772-, and it is a rule too well established to need my giving the reasons for it, that if the act once begins to run, it shall run on notwithstanding any subsequent disability. This has been considered as settled law ever since the time of Plowden, who reports this point to have been decided in the case of Stow-ell vs. Louch, 1 vol. 355. Then taking this rule for our guide, the act of limitations will bar the title of Josiah and of those claiming under him, unless an entry were made within seven j’ears from the death of Sarah. It is said an action was commenced by Josiah, in October, 1772, and abated by his death ; that, they say, is equal to a claim, and that a claim is equal to an entry.— An action however is only tantamount to a claim, when it is proceeded on to jundgment without any neglect on the part of the plaintiff, C. Litt, 163, a. If an action be commenced,and determine by the death of the plaintiff, and be again re-continued, it shall, as-to the act of limitations, be considered as commenced from the-time of the first action; but if the second action be commenced above a year from the determination of the first, then the computation as to the act of limitations, shall be suspended only from the commencement of the latter action ; and the act shall run on, and be computed up to that time, and the first action shall be considered as a mere nullity. They say, however, they hav.e-an excuse for not re-commencing the action in time ; they were under coverture and infancy. I answer, if an entry is not dispensed with in favor of an infant and feme covert, when the act once begins to run on the ancestor, neither can the re-c@mmence« jnent of the action in due time, which is in lieu of an entry, be dispensed with in their favor. He cited 2 Str. 907. Fitzgibbon, 170,171, 279, and Willis’s Reports, 257, note a. 1 Lutw. 260. 15 Viner Ab. 102, notis. Consider the limitation as a power, then that power expired or was revoked by the death of the grantor, 1 Ba. Ab. 204, Co. Litt, 52, and can never be executed af-terwards. The fee simple which was in the grantor, and was to be disposed of by virtue of this power, descended, on the death of the grantor, to his heir, or by his will was disposed of *o Esias or his children. As a power it also ceased when the object of it was no longer attainable ; the sale is to be made for the purpose of dividing the money amongst those that are living of them four above mentioned: and but one was living when the event happened upon which the sale was to take place. As a power also, it is void because in that part of the d'eed where the *391the sale io mentioned last, -no person is appointed to odt; and where it is first mentioned, they that <ue the*?, lining of hk four sons, or for want of them, (nuj one or more of their lawful heirs of their own bodies may «-secute a deed. Thd tatter have no power unless for want of the ibimcv. some of his sons then living. Josiah, one of the son:, v/.is then l.ving; che power vested, in him and espirad with him, and the tee remained where it was, ia the heir of the grantor, who conveyed to the defendant. Also as a power, st is now hi-capable of execution for another resma ; the Lends ;n the latter ciau.e in the deed respecting a sale, are to be sold to anr r rri or ¿sore of the grantoPs four sons &c. — by the former dan:..., “o any one or more of his sons then living when the issue ef cue fails, or to the heirs of their body or bodies j that h, ? r, i understand it, to the heirs of the body or bodies of such of his Guns as shall be living when the issue fails. Then, not only Jocuh tra-to sell, he being one of the four sons then living, wbic., he crua smt now do, being dead; but he was also to sell to i'.i.mWíí or t>> She heirs of his own fcotlyi which was impossible,,

Taylor, Judge.

There are many di&ctxlt poisic, !-*oi-.r* „ I advise the juiy to find for the plainúJÍ or defcij.-Si.at, -.ubjen,. i the opinion of the court upon facts 10 be stated by íhe c.-.c;,.*c n case the counsel disagree. My opinion is npoft «.he 'sXKvoie. u' h rr nations in Savor of the defendant j but this opinion imp.». r.3 :n-•correct and in a matter of so much consequence, es h r:-; She law of the county. I wish for time to reflect rum to f¡ n . K mature judgment.

The jury found for *he plaintiff, and the facts stated re r>,s counsel on both sides, Vvi-e these : In-1751, John H-rrel o-j:w¡í L; fee, conveyed by a deed i tthe w, -rdc following : [T.-.i.!»,O'-.:' vris. stated as before.! I'i-ie issue oí Ernas fukd ir< 17? h, L-v the d.rali of Sarah, his oaughut, married to William House v/itlvi?4 jwiw, the widow of 31 s <3 having married be fort. All ti'-e orhvr grantees were then dead, except J¡.-s-ah, who Jj; d in 177-3. A -, commenced an ej'-ctraeiii in October, 1772, lor the l.-x.a, ra.-cdor., against William House, the d.ifvndam., err, th-a suit a • bated oa his death. George, the heir at l.-.w of John, the gr .•>. t(¡r, convcyesl the lands in qr. stion in ice, by deed, U> ^ , u¿„.ir House, in 1772, who has hep-, possession ever since. The im-.p of Josiah ever since his death have been under disa’diitit-s till within tnree ye?rs next before the commencement oi ¡.ids action., in 1803. Noah, the son of David, one of the grantees, ca.ne cf «ge and sued, for the came lands by ejectment in 1782, sc d was nonsuited ia 1783 ; he tools: possession of one third of -.os P^ads in question, marked off for the widow of lisias, but «W.-v ubM title he sued or entered docs not appear. Ail the dec ten-*392dants of Ezekiel and David, except Nuah, were under disabilities from the failure of issue of Esias, till within three yeai-s last past. If the issues of all the grantees whose issue exists are entitled, then judgment to be for the plaintiffs generally. If only the issue of Josiah are entitled, then judgment for them only-If none of them are entitled, then judgment to be entered for the defendant.