Heath v. Heath

Construction of Deed — Grantee In Esse — Unborn Children. Under a deed to a woman “ and her children ” a child en venire sa mere at the date of the conveyance will take, but children horn more than a year thereafter will not.

PktitioN for the sale for partition of land, filed before the Clerk of Mecklenburg- Superior Court and, upon demurrer being filed by defendants, transferred to the Judge of the District and heard by consent before Melver, J., at Chambers in Hendersonville, December 5, 1893. The petition alleged that Joseph McLaughlin by deed dated in January, 1881, conveyed the land described in the petition to the feme plaintiff, Annie M. Heath, “and her children.” “ 2. That at the time said deed was executed hv the said /Joseph McLaughlin, the father of the said feme plaintiff, she had no child born, but the defendant Eva Ileath was born within two months from the date of said deed; and the other defendants, Eula Heath, Henry Heath and Etta Heath, were born to the said feme plaintiff and her husband, E. J. Heath, more than twelve months from the date of said deed. “ 3. That the feme plaintiff and the defendant Eva Heath are seized and possessed of said lands in fee-simple, as tenants in common, as the plaintiffs are advised and believe, each being entitled to an undivided one-half interest therein, under the deed from the said -Joseph McLaughlin, as aforesaid; the other defendants having no interest in said lands, but claiming to be tenants in common with the feme plaintiff therein. “ 4. That the feme plaintiff desires to hold her share of said land in severalty, and that actual partition thereof cannot be made without great detriment to the parties concerned. “ 5. That all of the defendants are the children of the feme plaintiff and her husband and co-plaintiff, E. J. Heath, and are all minors under the age of twenty-one years.” A guardian ad litem, was appointed for the infant defendants, Eula, Henry and Etta, who demurred to the petition upon the following grounds : “ 1. Eor that it appears from the facts set forth in the petition and Exhibit ‘A’ attached thereto that these defendants 'are tenants in common with their co-defendant and the feme plaintiff in the lands described in said petition and entitled to share in the proceeds of a sale qf the same for partition. “ 2. For that it appears from the facts set forth in the petition and exhibit (deed) attached thereto that all of the children of the feme plaintiff, now horn or hereafter to be born, arc or will become tenants in common with the feme plaintiff in the lands described in said petition, and as the feme plaintiff and her said husband are living partition of said land cannot be had until possibility of issue by her shall become extinct.” His Honor overruled the demurrer-and remanded the case to the Clerk to be proceeded with, and from this judgment the defendants Eula, Henry and Etta appealed.