Rowan County NcArchives Court.....A. M. Cruse, Polly Bird V. 1894
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Source: North Carolina Reports February Term
Written: 1894

Polly Bird v. A. M. Cruse

Deed-Construction of Reservation in Deed

A widow conveyed the portion of a tract of land allotted to her as dower by a 
deed purporting to be in fee simple; the guardian of the heir, having procured 
an order of Court for that purpose, sold and executed a deed to the purchaser 
for the entire tract, embracing the dower portion, but with a reservation as 
follows: "Reserving the right of dower of the widow, etc., which has 
heretofore been sold and conveyed": Held, that the reservation in the deed by 
the guardian of the dower right "already conveyed" was a reservation only of 
what interest the widow had legally conveyed and was not a reservation of the 
fee simple in the dower portion.

Action for the recovery of land, tried before Whitaker, J., at November Term, 
1893, of Rowan, on a case agreed, the material facts of which appear in the 
opinion of Mr. Justice Clark. There was judgment for the defendant, and the 
plaintiff appealed.

Messrs. Lee S. Overman and T. F. Kluttz for plaintiff (appellant)
No counsel contra

[NC Supreme Court]
Clark, J. In 1829 John Bird died seized and possessed of a 200-acre tract of 
land. Dower therein, consisting of 66 1-2 acres, was allotted to his widow. On 
8 October, 1831, she conveyed the 66 1/2 acres to Michael Corl in fee. The 
guardian of Polly Bird, the only child and heir at law of John Bird, having 
procured an order of Court to sell the land descended to his ward, and having 
sold the same publicly, executed title on 22 August, 1832, to said Michael 
Corl. This deed embraced the whole 200 acres left by John Bird, with a 
reservation as follows: "Reserving the right of dower of the widow of the late 
John Bird, which has heretofore been sold and conveyed to said Michael Corl." 

The plaintiff, Polly Bird, contends that by virtue of this reservation the 
reversion in the 66 1/2 acres of dower was not conveyed, and she now sues for 
the same, the widow having died in 1889. 

Unfortunately for the plaintiff the deed executed by her guardian, by order of 
the Court upon a sale of the land descended to her, embraced in it boundaries 
the whole 200 acres, including the dower. Michael Corl had bought of the widow 
her dower right, and he bought of the guardian under sale by order of Court 
the infant's interest in the whole tract subject to the dower. It is true the 
widow's deed for the 66 1-2 acres purported to convey a fee simple therein, 
but she could legally convey only her life estate. The reservation in the deed 
by the guardian of the dower right "already conveyed" was a reservation only 
of what interest the widow had legally conveyed, and was not a reservation 
from the guardian's conveyance of the fee simple in the 66 1-2 acres.

Affirmed

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