<p>Devise — Life Estate — Bide in Shelley’s Case— Will, Construction of — Evidence—Insanity of Mortgagor— Collateral Attach on Judgment — Innocent Purchaser.</p> <p>1. The rule in Shelley’s Case, though antiquated and based upon reasons which have long ceased to exist, is in force in North Carolina ; and, hence, a devise to a person “during his natural life and at his death to his bodily heirs,” vests in him a fee simple estate.</p> <p>2. A deed executed by a testator to one child several years before the date of his will and having no connection therewith, is not admissible to explain the terms of a devise, contained in the will, to another' child.</p> <p>3. In the trial of an issue as to the insanity of a mortgagor, evidence that, at the time of former proceedings against him for the foreclosure of a mortgage, he was in poor health and could not attend to ordinary business and occasionally had fits and spasms and had been declared an inebriate, was insufficient to go the jury.</p> <p>4. Where a judgment of foreclosure was rendered in an action in which the question of the insanity of the mortgagor was raised, the mortgagor is estopped thereby and such judgment cannot be collaterally attacked thereafter on the ground of his insanity.</p> <p>5. A Iona fide purchaser at a forclosure sale without notice that the mortgagor defendant in the action was insane, will be protected though the judgment, in proper proceeding for the purpose, should be set aside on the ground of such insanity.</p>
Cited by 1 later decisions — most recently May 1956
1 state decisions
Good law ✅— No negative treatment on recordhow we know
¶1
The main, question presented is, whether the devise to “B. D. Chamblee during his natural fife and at his death to his bodily heirs” conveyed a fee simple or not. It clearly does under the rule in Shelly’s case, and that rule is still in force in North Carolina.
Dawson
v.
Quinnerly,
118 N. C., 188;
Nichols
v. Gladden, 117 N. C., 497;
Starnes
v.
Hill,
112 N. C., 1; Leathers v.
Gray,
101 N. C., 162, in which cases the rule is stated, thoroughly considered and affirmed. It applies to devises equally with conveyances. 1 Fearne Rem., 89. The rule originated in the Feudal law, and a case construing it was reported in Coke’s Reports, 94 (though the rulé itself is found as far back as Year Book, 18 Edward II), and is based upon reasons which have long since ceased to exist. 1 Fearne Rem., 84; Williams R. P., 254, note. It is true, the rule contradicts and thwarts the intent of the grantor or devisor whose expressed purpose to confer an estate for life only upon the first taker is enlarged by an arbitrary rule of law into a fee simple, and the expressed purpose to confer all except the life estate upon the heirs is restricted so as to give them nothing. Still, it is a long established rule of property and cannot be changed except by legislative enactment. This, it seems, has been done in a majority of the States, but it has not been done in North Carolina. The
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rule being in force when the will wa,s executed, the will was in contemplation of law drawn with reference thereto. The deed made to one of the daughters had no connection with the will, having, in fact, been made several years before, was not competent and was properly excluded.
¶2
The court below properly held that B. D. Chamblee was estopped by the judgment in the foreclosure proceeding. There was not sufficient evidence to go to the jury as to the alleged insanity of B. D. Chamblee, and if there had been, the former judgment against him could not be impeached in this collateral way, but could only'be attacked by a direct proceeding,
Thomas
v. Hunsucker, 108 N. C., 720, and
Brittain
v. Mull, 99 N. C., 483, and certainly the purchaser without notice would be protected, even if the judgment could le set aside.
Odom
v.
Riddick,
104 N. C., 515;
Thomas
v.
Hunsucker, supra.
