#### Doe on the demise of REBECCA WELLBORN v. JOHN FINLEY et al.

•The non-age and coverture of a ferae cestui qui trust, cannot have the effecting of preventing an adverse possession for seven years under color of title, from ripening into a good title.

Where A mortgaged his land for a term of years, and then assigned the equity of redemption, and the mortgagee permitted an adverse claim under-color of title to ripen into a good title by adverse possession, it was Held that the assignee, on the payment of the purchase-money, and a reconveyance of the term, was barred of his entry until after the expiration of the term.

Where a bill was filed to settle all litigation concerning titles to several tracts of land that had become confused by the non-payment of mortgage money, and adverse claims under junior grants, and one of the tracts was withdrawn from the litigation, it was Held that a decree as to those remaining tracts in controversy, did not prevent such possession of an adverse claimant, under color of title, from ripening into a good one.

Where a husband and wife joined in a deed purporting- to convey a legal estate in fee of the wife’s land, in which he then had no interest, and the deed of the wife was inoperative for the want of a privy examination, it was Held that the assignment to the wife of a term that had been carved out of the estate (the reversion in fee being then in trustees) vested the term' in the husband jure mariti, and fed an estoppel created by the deed of the husband.

A deed by B and wife, reciting a conveyance of the legal title to A, a mesne conveyance to trustees in trust for a daughter of A, a marriage of B with the daughter, and reciting- also that the bargainees were empowered by Act of Assembly to purchase land for a town-site, but which is silent as to whether the trustee had conveyed the legal estate to the feme, and which then proceeds to “give, grant,” &c., the land itself — in the usual form, was Held to purport a conveyance of the legal estate.

Action of Ejectment, tried before Heath, J., at the last Fall Term of Wilkes Superior Court.

The action was brought to recover the possession of certain town lots in the town of Wilkesboro’, (and was to determine the rights as to all the other lots in the town.) The lessor of the plaintiff claimed title under a grant from Lord Granville to Henry Cossart, in 1754, for a tract called the lower Moravian tract, and a deed from Christian Frederick Cossart to Hugh Montgomery, dated in 1778. The plaintiff then offer*229ed evidence of a deed from Hugh Montgomery to James Kerr, David Nesbitt and John Brown, dated 13th December, 1779, in trust for the support and education of Rebecca and Rachel, his infant daughters, until they arrived at twenty-one or married, and then to be divided between them. The word “heirs” was left out of this deed, but a will which was also given in evidence, was executed three days afterwards, and the two instruments, taken together, were declared by this Court, in Gray v. Winkler, 4 Jones’ Eq. Rep. 308, to convey an estate in fee. The plaintiff further offered the will of John Brown, the surviving executor of Hugh Montgomery, and a deed from John Brown, Junior, one of the executors of John Brown, Senior, dated in 1829, conveying the said lower Moravian tract of land to Rachel Stokes, and Rebecca Wellborn.

.The plaintiff then offered in evidence a mortgage from Hugh Montgomery to John Michael Graff for the same tract of land, for a term of five hundred years, which was dated in 1778, ^ to secure the payment of the purchase-money; that Montgomery died in 1779, and the unexpired portion of the term, by a regular series of assignments, became vested in Christian Lewis Benzein. He showed the proceedings of the Court of Equity of Iredell, instituted in 1794, by the mortgagees and the trustees and cestui qui t/rusts against Lenoir, Lovelace, Mary Gordan, and others, for a settlement of the litigation growing out of the non-payment of the purchase-money, and to remove the confusion and distrust upon the title, produced by the conflicting claims of Lenoir, Lovelace, Mary Gordon and others. The decree, in this case, made in 1814, was that one of the tracts be sold to pay the remainder of the purchase-money, to secure which, the mortgage had been made, and that Lenoir, Lovelace, Mary Gordan, and others, the subsequent grantees and their assigns, should surrender and reconvey the lands they were in possession of. Also, that on the payment of the balance of the purchase-money, the remainder of the term should be assigned to Mrs. Stokes and Mrs. Wellborn, and that John Brown, Jun., the trustee appointed by the Court, for the purpose, should make title to *230them for the legal estate in the land in fee simple. In pursuance of this decree, the executors of C. L. Benzein, having been paid the purchase-money in full, made a deed of assignment of the said term of five hundred to Rebecca Wellborn and Rachel Stokes; this was dated on the 17th of May, 1815. It was also shown by the plaintiff, that in 1829, the said John Brown, Junior, made a deed in fee according to this decree, of the estate in fee simple, to Mrs. Wellborn and Mrs. Stokes.

It appeared in the case, that in the year 1779, the land in question had been granted to one Pitman, and from him conveyed by a succession of deeds to Mary Gordon, who had possession of the same for seven years ensuing her entry, on the 28th of October, 1791, and who, on the 8th of May, 1800, conveyed to the commissioners appointed by act of Assembly to purchase a site for the public buildings of Wilkes county, who conveyed to the defendants, or those under whom they claim.

On the 17th of May, 1800, in pursuance of the same act of Assembly, the following deed was made by James Wellborn and his wife Rebecca and others, for the lands in question, but which was not perfected as to her, by a privy examination :

“This indenture, made this 17th day of May, in the year of our Lord, 1800, between James Wellborn and Rebecca Well-born, and Montfort Stokes and Rachel Stokes, of the county of Rowan and State of North Carolina, of the one part, and Thomas Fields, George Gordon, Robert Martin, Walter Brown, and George Brown, commissioners for fixing on a plan for the purpose of erecting the public buildings for the said county of Wilkes, of the other part: Whereas, Christian Frederick Cossart, by deed bearing date 23d day of July, in the year of .our Lord, 1778, did convey to the late Hugh Montgomery, of Salisbury, a certain tract and parcel of land, situate and lying in the county of Wilkes aforesaid, on both sides of the Yadkin River, against the Mulberry fields, beginning at a white oak, running thence west, &c., containing in the whole 4933 acres, be the same more or less; and whereas, by a deed *231of gift in trust, bearing date 13th of December, 1779, the said Hugh Montgomery hath conveyed to James Kerr, David Nesbitt, and John Brown, trustees for Rebecca and Rachel, the infant daughters of the said Hugh Montgomery, the aforesaid tract of laud with the appurtenances lying and being as aforesaid; and whereas, James Wellborn, of Wilkes county aforesaid, hath intermarried with Rebecca, and Montford Stokes, of Rowan county aforesaid, hath intermarried with Rachel, the daughters of the said Hugh Montgomery, dee’d; and whereas, the said Thomas Field, &c., commissioners as aforesaid, are empowered and required by an act of the General Assembly of the State of North Carolina, passed at Raleigh, in 1799, to purchase or procure fifty acres of land at the place where the Court House now stands, for the purpose of erecting the public buildings for the said county of Wilkes, now this indenture witnesseth, that the said James Wellborn and Rebecca, his wife, and the said Montfort Stokes and Rachel, his wife, for and in consideration of the sum of five pounds current money, to them in hand paid by the said Thomas Fields, &c., commissioners as aforesaid, the receipt of which is hereby acknowledged, hath given, granted, bargained and sold, aliened and confirmed, and by these presents, do give, grant, bargain, sell, alien and confirm unto the said Thomas Fields, &c., a certain piece or parcel of land in the county of Wilkes aforesaid, beginning at a stake and walnut, &c., (describing the town site and lots in question,) containing fifty acres, be the same more or less, being part of the .aforesaid tract of 4933 acres, and including the present Court House of the said county of Wilkes, &c., to have and to hold the said fifty acres of land, with the appurtenances to the said Thomas fields, &c., commissioners aforesaid, to the only proper use and behoof of the said Thomas Fields, &c., their heirs and assigns forever. And the said James Wellborn and Rebecca, his wife, and Montfort Stokes and Rachel, his wife, for themselves and 'fheir heirs, the aforesaid fifty acres of land, with the premises and appurtenances, and every part thereof, unto the said Thomas Fields, &e., commissioners *232aforesaid, and their heirs and assigns, against them the said James Wellborn and Rebecca, his wife, and said Mont-fort Stokes and Rachel his wife, and against the claim or claims of any person, or by or from under them, or either of them, or the said Hugh Montgomery, deceased, will warrant and defend by these presents. In wetness, whereof, the said James Wellborn and Rebecca, his wife, and the said Montfort Stokes 'and Rachel, his wife, have hereunto set their hands and affixed their seals, the day and date herein first written.”

The deed was signed by the several parties named as bargainors, and acknowledged by the husbands, and ordered to be registered, but there was no evidence of any privy examination as to their wives.

Deeds were also made to these commissioners by the President of the board of trustees of the University, bearing the same date. James Wellborn died in the year 1854, and this suit was brought by his widow within two years afterwards.

The defendants submitted to a verdict, with a right to set it aside and enter a nonsuit if the Court should, upon consideration of the case, be of opinion against the plaintiff’s right to recover.

Afterwards, upon consideration of the whole case, the Court being of opinion with the defendants, ordered a nonsuit, from which the plaintiff appealed.

Boyden, and W. P. Caldwell, for the plaintiff.

Mitchell, Barber, and Lenoir, for the defendants.

Pearson, C. J.

Conceding that the deed of Mrs. Wellborn did not take effect by reason of the defect in the mode of taking her privy examination, and that the title was regularly deduced from the original grantee, down to Hugh Montgomery, and that, as between those claiming under him, it vested in her, see Winkler v. Gray, 4 Jones’ Eq. 308, this Court concurs with his Honor in the Court below, that the plaintiff was not entitled to recover.

We put our conclusion on two grounds;

*2331st. The commissioners got the title, as well as the possession from Mary Gordon, and of course the defendant has a ■right to set it up.

In 1791, Mary Gordon, who was then living on the land, bought it at sheriff’s sale, and a deed was executed to her.— This gave her color of title. She continued in possession under this deed, claiming adversely, and without interruption from 1791 to 1S00. This ripened her color of title, and she became the owner of the laud so held in possession by'force of the statute, unless there was some ground which prevented its operation. Two were relied on in the argument; but we think neither is tenable, viz :

Mrs. Wellborn married in 1794, was then under age, and afterwards continued under coverture until shortly before this action was commenced. If we put out of view the term of five hundred years, created by Montgomery, and suppose the entire estate to have vested in Brown and others, in trust for Mrs. Wellborn, by force of the deed and will of Montgomery, in 1779, it is clear, that the nonage and coverture of the cestui qui. trust, could not have had .the effect of preventing the possession of Mary Gordon from ripening her title, and and defeating the title of the trustees, by tolling their right of entry, after which, certainly, the cestiti qui trust could not have had any remedy at law, and none in equity, save to hold her trustees accountable for a breach of duty in permitting the title to be divested by reason of laches on their part.

Or, if we suppose Montgomery to have executed a mortgage in fee, and then to have assigned his equity of redemption in trust for Mrs. Wellborn, it is clear her nonage and coverture could not have had the effect of preventing the possession of Mary Gordon from ripening her title and divesting the title of the mortgagee by tolling his right of entry; after which, neither the trustees nor Mrs. Wellborn, could have had any remedy in law or Equity against Mary Gordon; for she would, by force of the statute, have acquired a title, not under the mortgagee, butpwrammmt and above all of them.— So that, if the mortgage-money had then been paid, and the *234mortgagee had reconveyed to the trustees, her right would ■not have been affected; for the mortgagee having lost the title, had nothing to convey, and could not by a naked deed, put the trustees in a better condition than he was in himself. Mrs. Wellborn’s title, therefore, if she has any, must depend on the fact that the mortgage was for a term of years.

If one create a particular estate, say for life or years, and the estate of the particular tenant be divested, and his right of entry tolled by an adverse possession for seven years, under color of title, after the termination of the particular estate, the reversioner will have a right to enter by force of his original estate, because his right of entry did not accrue until the particular estate determined, and the statute did not begin ■to run as against him, before his right of entry accrued, and it is clear that after the entry of the particular tenant was tolled, he could not, by a surrender of his estate put the reversioner in a better condition than he was in himself; for he had no estate to surrender, and consequently, the reversioner would have no right of entry until he acquired one by force of his original estate.

Nor is the case varied by the fact that the particular estate is a term for years, created by way of mortgage; for, after the mortgagee has lost his estate, he has nothing to surrender, and the mortgagor, if he redeems, must wait until his right of entry accrues by force of his reversion. These conclusions are all plainly deducible from familiar principles of the common law, and we presume no authority need be cited in support of them.

Mrs. Wellborn’s nonage and coverture being of no avail, the other ground relied on to prevent the effect of the adverse possession of Mary Gordon, was the pendency of a suit in Equity between the mortgagees and the trustees and the cestui qui trusts, and one Lenoir, Lovelace, and Mary Gordon and others, instituted in the year 1794 for a settlement of all the litigation growing out of the non-payment of the mortgage-money, and adverse claims set up under junior grants, in which a decree was made in 1814, under which, one *235tract of land was sold to pay the balance due of the original purchase-money for which the mortgage was executed, and the mortgagee was decreed to assign the mortgage-term to Mrs. Wellborn, and Lenoir, Lovelace and Mary Gordon and others, were decreed to release and surrender all claim derived under the junior grants.

This would be a complete answer to the statute of limitations, but for the fact that in 1800 the piece of land now in controversy, being a part Iff one of the larger tracts was withdrawn from the operation of the proceedings in Equity above referred to, because it was supposed that by the deeds of Wellborn and wife, Mary Gordon and the trustees of the University and others, the title to this particular parcel had become vested, both in Law and Equity, in the commissioners, as the site of the town of Wilkesboro’, and all the various conflicting titles having, as it was supposed, centered in them, the suit was discontinued in respect to this land, and it is not embraced in any of the subsequent orders, or in the final decree. So, as to it, the case is the same as if such proceedings had never been instituted.

There is, consequently, nothing to prevent the title of Mary Gordon from having ripened into the better title, and Mrs. Wellborn has no cause of action. Iiow it may be after the expiration of the five hundred years, we will not venture to speculate, further than we have been forced to do, in order to establish our conclusion.

2ndly. The deed of Wellborn and wife, as we have seen above, did not take effect as to her. Nor did it operate at the date of its execution in 1800, to pass any estate from Well-born; for he then had no interest in the land. He was married 1794, and had issue born alive, but he did not become tenant by the curtesy initiate in the trust estate of his wife ; for, in order to that, there must be an actual seizin in regard to a legal estate, or something equivalent to it in regard to a trust, which wras prevented by the adverse possession of Mary Gordon. So, the deed of Wellborn operated by way of estoppel, and afterwards, in 1814, when the term of five hun*236drecl years was assigned to Mrs. Wellborn, it passed to him, jw'6 maribi, and then passed to the commissioners, or those claiming under them “to feed the estoppel” in the quaint language of the books, and the legal effect was to vest the title in the commissioners, or those claiming under them, in the same way as if he had been the owner of the term, when he executed the deed. This is a well settled rule of law, and is an instance of that being done, by mere act of law, which the party had before professed to do by a solemn act; Foscue v. Satterwhite, 2 Ired. Rep. 470; McNeely v. Hart, 9 Ired. Rep. 61; 2 Smith’s Lead. Oases, 460, (notes.)

To meet this view of the case, the counsel for the plaintiff again relied on two grounds, viz: Where the deed sets out

the fact that the party has no estate, and professes to pass only such interest as he may own, there is no estoppel; for, as the books say “an estoppel against an estoppel leaveth the matter at large;” as if the deed sets out that the party is entitled to a contingent interest, which is not the subject of a conveyance, and professes to pass it, there is no estoppel, and and should the interest afterwards vest, it will not pass — under the rale as to feeding an estoppel; but it is necessary for the purchaser to apply to a Court of Equity in order to get an assignment, under the allegation that the deed is evidence of an executory agreement to convey, of which Equity will decree specific performance.

This position is true, and for the purpose of showing its application to the present case, the learned counsel insisted that Wellborn’s deed sets out a mere trust estate, and professes only to pass the equitable estate of himself and wife. So, the question turns upon the construction of that deed. We think it does profess to pass the legal title in fee simple■ — -that is, the land itself, and not a mere trust estate. It recites that Oossart had conveyed the land in 1778, to Montgomery, and that he, in 1779, conveyed the land to Brown and others in trust for his two infant daughters, Rebecca and Rachel — and the marriages of the said Rebecca and Rachel with Wellborn and Stokes, and that the commissioners are empowered to *237purchase fifty acres of land for the site of the public buildings for Wilkes county, but is silent in respect to whether the trustees, Brown and others, had conveyed the legal title to the cestuis qui trust. Rebecca and Rachel, and by its silence, leaves it to be inferred that they had so conveyed, for it then professes to “give, grant, bargain and sell,alien and confirm” to the commissioners, a certain piece or parcel of land, bounded, &c., containing fifty acres, to have and to hold the said fifty acres of land to the commissioners, and to their only use and behoof, to them, their heirs and assigns forever; with warranty against themselves and their heirs, and all persons claiming under Montgomery — in short, it conveys in the usual form, the legal title in the land itself, as if they had legal title, by a previous conveyance, from the trustees.; consequently, the deed operated by way of estoppel.

But in the second place, it was insisted, that as Wellborn acquired the term of 500 years jure ma/riti, and liis wife would take it by survivorship, in the event of his death, without making a disposition of it, the law will not dispose of it for the purpose of feeding the estoppel, and thereby deprive the wife of her chance of survivorship.

No authority was found to support this distinction between a case, where a husband buys' a term for years, and where it is acquired jure mariti, and it is opposed to principle ; for when he afterwards acquires the estate, no matter how, provided he does not hold it in a/utre droit, as where it devolved upon the wife, as executrix, the law, in its justice, will pass it to the party to whom he had professed to convey the land ; in like manner, as if he had owned it- at the time he made the deed. This is decided in Doe v. Oliver, reported in 2 Smith’s leading cases, 417, where the authorities are collected. The Court say: “We are satisfied, upon the authorities, that a fine, by a contingent remainderman, though it operates by estoppel, does not operate by estoppel only, but has an ulterior operation when the contingency happens, and that the estate, which then becomes vested, feeds the estoppel, and that the fine operates upon that estate, as though that estate *238 had been vested in the eonusees at the time the fine was levied.”

The cases referred to, show that there is no difference in the operation of a fine and a deed, in this respect, and the conclusion is, that the law does that for the part}’’, which he ought to do himself, that is — transfers the estate, the instant he acquires it, and has the right of disposition.

If Mrs. Wellborn had acquired the legal estate in the reversion, before the term was assigned to her, a very interesting question would have been presented, i. e., would the term have instantly merged so as to give her the fee simple in possession ? Or would it have passed to her husband jure mariti, and instantly passed to feed the estoppel ? Both the merger and thq feeding of the estoppel being acts of law. However, the question does not arise, as the surviving trustee did not conve3>-to her until some years afterwards, and it is alluded to merely because it was suggested on the argument.

Per Curiam,

Judgment affirmed.