1. A deed, made since the statute of uses, is not to be construed by the same rules of interpretation as were applied to deeds before that statute. Therefore, if a deed give an estate to a woman during her life or widowhood, it determines by her marriage.
2. Uncertainty in a deed will invalidate it, but it must be such an uncertainty as makes it impossible to tell what estate is granted or who is first to take. The assent of a grantee is to be presumed to a deed in his favor.
3. After a limitation in a deed to heirs of the body, a clause empowering the tenant in tail to sell will be rejected as repugnant.
4. The deed of a wife and her husband, to which she has not been privily examined, is color of title.
TAYLOR, J.
First, a deed made since the statute of uses is not to be construed by the same rules of interpretation as were applied to deeds before that statute. If a deed now gives an estate to a woman for her life or widowhood, she is not to take the estate which is most beneficial, but to hold during her widowhood only. The nonsuit which is moved would, therefore, be improper, for the widow, though alive, has determined her estate and widowhood by marriage.
Secondly, uncertainty in a deed will invalidate it; but it must be such an uncertainty as makes it impossible to tell what estate is granted or who is first to take.
Thirdly, the assent of a grantee is to be presumed to be a deed in his favor. Here J. Harrol made the deed under which plaintiff claims an estate tail; there is no subscribing witness, but the grantor acknowledged it in court, and that is proof of the assent of the grantee. Upon such acknowledgment it was recorded. The deed, therefore, is well enough notwithstanding the objection.
Fourthly, the estate is limited by this deed to heirs of the body, (235) and though afterwards it gives power to the tenant in tail to sell to any of his brothers, it is not to be taken that this clause is to influence the former, but it must be rejected as repugnant.
Vide Alston v. Jones, post, 298.
Fifthly, this deed was executed in 1751; the deed to the grantor was in 1747, which, for want of the examination of the feme covert, who was the owner and proprietor, was not at first valid; and therefore it is urged that he had not an estate out of which he could create an estate tail. It is in proof that he and his son, made tenant in tail, continued in possession more than seven years; and that is sufficiently conformatory of his estate to make good the estate tail.
NOTE. — Upon the first, second, and fourth points, see Sheppard v. Simpson, 12 N.C. 237; Roberts v. Forsythe, 14 N.C. 26; Proctor v. Pool, 15 N.C. 370; Belk v. Love, 18 N.C. 65; Dismukes v. Wright, 20 N.C. 206; Wiggs v. Saunders, ibid., 480; Everett v. Thomas, 23 N.C. 252; Mayo v. Blount, ibid., 283; Massey v. Belisle, ibid., 170.
As to the third point, see Tate v. Tate, 21 N.C. 22. And upon the last point, see note to Strudwick v. Shaw, 1 N.C. 34, and 2 N.C. 5.
Cited: McConnell v. McConnell, 64 N.C. 344; Perry v. Perry, 99 N.C. 273; Ellington v. Ellington, 103 N.C. 58; Greenleaf v. Bartlett, 146 N.C. 498; Norwood v. Totten, 166 N.C. 651.