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STATE V. BRADSHER.

1107 (- N. 0. 127 8. E. 349.) clerk approved the bond tendered was notice to the court, and thereby appellants as a compliance with fore to the obligee, then it was inthe order of the court. The bond cumbent upon appellants to offer filed in the record is the bond signed evidence that the clerk had notice of by appellants, and having been ac- the agreement, or at least of sufficepted by the court, as tendered, it cient facts to put him on inquiry. cannot now be attacked or im- There is no finding by the court as peached by appellants, on the to whether or not the clerk had noground that it is void by reason of tice either of the agreement or of the failure of the principal to sign facts sufficient to put him on init.

quiry. Nor is there any exception 3. Lastly, appellants contend that that the court failed to find that the the bail bond is void, for the reason

clerk had notice. that the sureties, R. M. Spencer and Where the judge has, by an order R. W. Wilkerson, signed the same made in open court, fixed and deupon a conditional agreement with termined all the essential elements the principal, assented to by the of a bail bond,—the amount, the sheriff, as found by the judge, and conditions, and the number of surethat appellant W. J. Pettigrew ties, and whether or not they shall signed in reliance upon the validity justify,—he may provide that the of these signatures. Appellants bond may be filed during recess or contend that, as the conditions were

after the adjournment of court, pronot complied with by the principal, vided it is approved, as to form and neither of them is liable.

as to sufficiency of sureties, by one It is clear that no conditional or more justices of the peace, agreement between the principal named by him, in the order [State and his sureties, who signed the

v. Edney, 60 N. C. (2 Winst. L.)], or bond, affecting their liability, can

by the sheriff or any other person be a defense for the sureties, unless

named by him (State v. Houston, 74 the obligee in the bond had notice

N. C. 549; State v. Jones, 88 N. C. of such agreement. The obligee in

The obligee in 684; State v. Jones, 100 N. C. 439, the bond is the state of North Car

6 S. E. 655). The officer or person olina. The terms and conditions of

whose approval is the bond were fixed by the court, required before the authority as to and could not be changed or altered

acceptance of the except by the court. Notice to the

bond has no duty or authority sheriff of the agree

with respect to the bond except -agreement by sheriff as to ment as found by by the order.

that imposed or conferred on him number of sure- the judge was not

No notice to such ties-elect. notice to the obligee

officer or person of any facts, with

respect to the execution of the bond, or to the court. The sheriff was not the agent of the court, and had

which do not appear upon its face,

will support a defense to a sci. fa. no duty to perform with respect to

issued for the enforcement of the the bond. It was his duty to hold

bond. When the bond has been apthe prisoner in custody until the order of the court had been complied cepted, and filed in the record, it is

proved as required by the court, acwith as to bail. There is no finding

a recognizance; that is, a debt of that the clerk had notice of the con

record, conditioned only as appears ditional agreement. The only duty

in the bond, and may be dealt with imposed upon the clerk with respect in all respects as a recognizance. to the bond was to approve it as to The contentions of appellants as form and as to sufficiency of sure- to the validity of the bond cannot be ties. His authority extended no sustained. The judgment is well further than necessary for the per- supported, both on principle and by formance of this duty. If appel- the authorities, and is affirmed. lants contend that notice to the clerk As to whether the facts found by

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approving bond.

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the judge, now appearing in the rec- Pettigrew may be held to have ord, entitle appellants to relief, in waived a favorable consideration of whole or in part, from the judgment the facts upon which such relief rendered by his Honor, and now af- may be sought by their conduct in firmed by us, in accordance with the the presence of the clerk, it would law applicable to these facts, is not seem that appellant R. M. Spencer, presented to this court. A petition who was not present when the bond for such relief may be presented to was delivered to the clerk and had the judge of the superior court, pre- no notice until the next day that the siding at some ensuing term of court prisoner had been discharged, would for Person county under Consol. receive such consideration. There Stat. § 4588, notwithstanding that a is no error in this record, of law or final judgment has been rendered. legal inference, and we must so hold. Although appellants Wilkerson and The judgment is affirmed.

ANNOTATION.

Necessity of acknowledgment of bail bond in open court.

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The view taken in the reported case ing term time, fixed an amount of bail, (STATE v. BRADS HER, ante, 1102) that the action of the clerk in taking a acknowledgment in open court, which bond during a subsequent term was is an indispensable requisite of a tech- held to be authorized. Under an early nical recognizance, may be dispensed Kentucky statute, a sheriff or jailer with in the case of a bail bond, and could take a bond. Jones V. Bunn that the bond may be effective as a (1859) 2 Met. (Ky.) 490. recognizance, notwithstanding its not In State v. Krohne (1893) 4 Wyo. having been so acknowledged, is in- 347, 34 Pac. 3, it was held that a clerk directly supported by other cases. of court was authorized to take a bail

Thus, in affirming a judgment on a bond during the court's vacation. But forfeited bail bond, which was not see, to the contrary, State v. Carothers acknowledged by either the principal (1860) 11 Iowa, 273. or his surety, but was signed by the As to statutory requirement of a former in the judge's presence after recognizance to be taken in open court the surety had signed it elsewhere, being not satisfied by the giving of an the court in State v. Wilson (1915) appeal bond after the court's adjourn265 Mo. 1, 175 S. W. 603, distinguished ment, see Herron v. State (1863) 27 between such a bond and a recog- Tex. 337; Jones v. State (1877) 1 Tex. nizance, and declared, as to the bail App. 485; Arnold v. State (1878) 3 bond: "It may be taken in court or Tex. App. 437; Terry v. State (1912) out of court in vacation. An acknowl- 64 Tex. Crim. Rep. 497, 142 S. W. 875; edgment does not add to its effective- Saye v. State (1912) 66 Tex. Crim. ness, and there is nothing in its na- Rep. 257, 145 S. W. 1189; Craig v. ture or terms which requires that it State (1912) 66 Tex. Crim. Rep. 433, should be signed in the presence of 147 S. W. 251; Hamilton v. State the court, or officer who takes same, (1912) 68 Tex. Crim. Rep. 47, 150 S. to render it valid.”

W. 775; French v. State (1913) 69 In holding that a lien was not cre- Tex. Crim. Rep. 316, 153 S. W. 858; ated by a bail bond, the court stated Williams v. State (1918) 84 Tex. Crim. in Cole v. Warner (1893) 93 Tenn. 155, Rep. 255, 206 S. W. 684. 23 S. W. 110, that the bond is taken As to the constitutional right to out of court, in vacation.

bail pending an appeal from a conIn Wilson v. Com. (1896) 99 Ky. 167, viction, see annotation in 19 A.L.R. 35 S. W. 274, where a court had, dur- 807.

E, W. H.

(- Ky. -, 270 S. W. 20.)

OTTO BRILL et al., Appts.,

V.
ARIZONA LYNN et al.

Kentucky Court of Appeals - March 10, 1925.

(- Ky. — 270 S. W. 20.) Deeds, $ 93 — conveyance by one having possibility of reverter.

1. A second conveyance with warranty of title by a grantor, to one to whom he has previously granted a defeasible fee with possibility of reverter, vests the fee simple in the grantee.

[See note on this question beginning on page 1111.] Deeds, $ 95 – proviso limiting con- case the grantee dies without children, veyance effect.

limits the conveyance to a defeasible 2. A proviso following the haben- fee, subject to be defeated by the dum and warranty clauses in a deed grantee's death at any time without conveying a parcel of real estate, that children. the land shall revert to the grantor in [See 10 R. C. L. 652.]

APPEAL by defendants from a judgment of the Circuit Court for Webster County sustaining a demurrer to their counterclaim in an action brought to enforce collection of certain purchase-money lien notes. Affirmed.

The facts are stated in the opinion of the court.

Messrs. Rayburn & Withers for ap- It appears that by deed dated pellants.

March 16, 1899, Squire Mooney and Mr. C. W. Bennett for appellees. Amanda Mooney, his wife, conveyed

Sandidge, J., delivered the opin- the tract of land, the title of which ion of the court:

is questioned, to appellee Arizona On September 20, 1922, appellees Lynn.

Lynn. By the caption of the deed, Arizona Lynn and her husband, Squire Mooney and Amanda MoonCarl Lynn, conveyed to appellant ey, his wife, are named as parties of Otto Brill three tracts of land. For the first part, and Arizona Lynn as part of the purchase price Brill gave party of the second part. The them purchase-money lien notes to granting

granting clause reads: Have the amount of $4,000. The notes granted and given, and by these were not paid at maturity, and ap- presents do give, grant, alien and pellees sued to enforce their collec- convey unto the said party of the tion under the lien. Appellees were second part." and are nonresidents of the state of The habendum and

and warranty Kentucky. Making his answer a clause reads: "To have and to hold counterclaim, Brill defended, claim- the same, together with its appurteing that the title of one of the tracts nances unto the said party of the of land was defective, and suing for second part, her heirs and assigns the breach of the covenant of war- forever, with covenant of general ranty. The chancellor sustained a warranty.” demurrer to the counterclaim, con- Immediately following that, there struing the deeds questioned to have appears in the deed this language: passed the fee-simple title of the “Provided, however, that in case the tract of land in question, and that by said party of the second part dies his deed appellant took the fee in the without children, then in that case land. The appeal has been prosecut- the said land above described is to ed, and the deeds in question are be- revert back to the party of the first fore us for construction.

part or their heirs."

limiting conveyance-effect.

Without going into an elaborate We are confronted, however, with discussion of the question, upon au- appellants' contention that, as the thority of the latest utterance of grantor in the last deed had prethis court pertaining to it, as ap- viously conveyed to the grantee all pears in Kimbrell v. Parmer, decid- of his estate in the tract of land in ed April 18, 1924, 202 Ky. 686, 261 question, the second conveyance was S. W. 11, and the cases therein cited, of no effect, and did not serve to conwe hold that by the foregoing deed vert the previous defeasible fee conappellee Arizona Lynn took a de- veyed to appellees into a fee-simple

feasible fee in the title. Deeds-proviso

Appellants contend that a tract of land there- mere possibility of reverter is not

by conveyed to her, an estate in real estate which may subject to be defeated upon her dy- be the subject of conveyance, and ing at any time without children. that its attempted conveyance is of The entire estate passed from the no value.

With reference to posgrantors to her. By the deed there sibility of reverter, 21 C. J. § 180, was created a possibility of revert- p. 1018, enunciates the following er, by which, in the event the grant general rule: “A possibility of reee should eventually die without verter is, at common law, not an eschildren, the land thereby granted tate; it is inalienable, not assignable, thereupon would revert to Squire not devisable, unless made so by Mooney, the grantor, if he should statute; but it is descendible, and then be living, or to the then heirs may be released to him in possesof himself and his wife, if he should sion." then be dead.

On the subject, in 23 R. C. L. $ But for the fact that subsequent 9, p. 1104, it is written: “Where ly the grantor in the foregoing land is conveyed on a condition subdeed made another conveyance of sequent, the right of reverter in the the same tract of land to the grantor on breach of the condition same grantee, unquestionably the is not assignable, and, on breach of judgment of the chancellor would be the condition, it reverts to the granterroneous, and the judgment should or or his heirs, and not to his asbe reversed. We find, however, that signees. No other person than the on April 16, 1908, the same Squire grantor or his heirs can take adMooney named in the caption as vantage of a condition which re“party of the first part" conveyed to quires a re-entry in order to revest the same Arizona Lynn and Carl the former estate. The reason why Lynn, as parties of the second part, a conveyance of land by one who has the same tract of land. The grant previously conveyed on a condition ing clause in the second deed reads, subsequent passes no title to the "The said party of the first part grantee is that by the first convey. does hereby grant, bargain, sell, and

ance the whole estate went out of convey to the said party of the sec

the grantor therein. He had nothond part, Arizona Lynn and Carl Lynn, and their bodily heirs;" while

ing left to convey. It is true that

there is a possibility that sometime the habendum clause reads, "To

the title may return to him; but have and to hold the same, with all the appurtenances thereon, to the

until it does, through his assertion said second party, their heirs and

of his right arising from the breach assigns forever, with covenant of

and his actual recovery of the land, general warranty." The terms of

there is nothing on which his conthe foregoing deed, when construed veyance to a stranger can operate. in the light of $ 2343, Kentucky

It has been held that while he who Statutes, unquestionably conveyed

would be entitled to an estate, if the the fee-simple title of the tract of fee conditional should presently deland in question to appellees Ari- termine, cannot devise or convey it

, zona Lynn and Carl Lynn.

yet he may release it to the tenant in

-conveyance by one having pos

ter.

(- Ky. 270 8. W. 20.) fee conditional, so as to make his leased by the grantor to the holder estate an absolute fee simple." of the defeasible fee. The outstand

Our investigation of the question ing case on that question in this has led to the interesting discovery country seems to be that of Vaughan that while the courts of this country v. Langford, 81 S. C. 282, 128 Am. uniformly have held that the mere St. Rep. 912, 62 S. E. 316, 16 Ann. possibility of reverter is not an es- Cas. 91. The supporting cases, both tate, and is inalienable, they have, American and English, are found with equal uniformity, held that, in cited in that opinion, and there cases where the grantor of a de seems to be no dissent from the docfeasible fee, who, under the grant, trine. We therefore hold that, by possesses a possibility of reverter, the second conveysubsequently conveys the possibility ance, Squire Moonof reverter to a stranger, although ey released unto the sibility of reverthe attempted conveyance is held to holder of the debe ineffectual in so far as it under- feasible fee all possibility of retakes to convey any right or interest verter, and the second deed had the to the grantee, it has the effect of effect of vesting in appellees Ariextinguishing the grantor's possibil- zona Lynn and her husband, the feeity of reverter. One of the out- simple title to the tract of land in standing cases on the question is question. that of Wagner v. Wallowa County, The conclusion makes it unneces76 Or. 453, L.R.A.1916F, 303, 148 sary for the court to consider the Pac. 1140. In the latter publication effect of our statutes with reference an interesting annotation and cols to conveyances and the interests in lation of the authorities and discus- lands that may be conveyed, to desion of the various cases may be

termine whether or not, under our found. Since the case here present statutes, the possibility of reverter is ed does not possess that feature, as

such an interest in land as may be there was no attempted alienation

conveyed. Having concluded that

by the two deeds in question appelto a stranger of the possibility of

lees became the owner of the feereverter, we will not go further into

simple title of the lands, their conthe question.

veyance of it to appellant was valid, Whil th cases seem to be few,

and he thereby likewise became the the courts both of this country and

owner of the fee therein. Conseof England seem to support the quently, we hold that the Chancellor texts of Corpus Juris and Ruling properly sustained the demurrer to Case Law, quoted above, that an- appellant's answer and counternounce it as a principle of law that claim, and the judgment herein is a possibility of reverter may be re- affirmed.

ANNOTATION.

Release of possibility of reverter.

The few cases in which the point Brayer (1916) 172 N. C. 642, 90 S. E. has been considered concur with the 754; Adams v. Chaplin (1833) 10 S. C. reported case (BRILL V. LYNN, ante, Eq. (1 Hill) 265 (obiter); Pearse v. 1109) in holding that the possibility Killian (1841) 16 S. C. Eq. (McMull.) of reverter remaining in the grantor 231; Arnold v. Scharff (1918) Tex. of a fee upon condition subsequent Civ. App. 210 S. W. 326. may be released to the tenant of the It may be released by the heir of fee conditional, so as to make his es- the original grantor, as well as by tate an absolute fee simple. See Mc- the grantor himself. Pearse v. Killian Ardle v. Hurley (1918) 103 Misc. 540, (1841) 16 S. C. Eq. (McMull.) 231. 172 N. Y. Supp. 57; Huntley v. Mc- So, where the person entitled to the

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