
    Nichol vs. Dupree and Wooldridge’s lessee.
    
    A conveyed a tract of land to his son-in-law, B. B devised it to his wife, the daughter of the said A, who afterwards died without issue, leaving two brothers of the half blood on the mother’s side, and two brothers and two sisters of the whole blood: Held, that the two brothers of the half blood were entitled to inherit, as heirs, equally with the brothers and sisters of the whole blood.
    This was an action of ejectment, brought by the lessors of the plaintiff below, to recover two-sixth parts of a tract of land originally granted to John Nichol, Sen. and by him conveyed, by deed of gift, to his son-in-law, Henry Ingraham. Ingraham, by his will, devised it to his wife Susan, (the daughter of said John Nichol, Sr.) She afterwards married a man by the name of Denson, and died without issue, leaving two brothers of the half blood on the mother’s side, to wit, William and Archibald Lytle; two brothers of the whole blood, to wit, John Nichol, the defendant below, and Alfred Nichol; and two sisters of the whole blood, to wit, Mrs. Dupree and Mrs. Wooldridge, who are the lessors of the plaintiff.
    The lessors of the plaintiff, Mrs. Dupree and Mrs. Wooldridge, by deed bearing date 28th February, 1829, conveyed to the plaintiff in error, John Nichol, all their interest in said tract of land. The words by which their interest was conveyed are as follows: “hath given, granted, bargained, sold, aliened and confirmed, and by ° j • , - „ j these presents do give, grant, bargain sell, alien and con-finn unto the said John Nicliol, his heirs and assigns forever, all of their part of that undivided tract of land, which the said Nancy Dupree and Kesiali Wooldridge inherited by the death of Susan Denson.” This-deed contained a general warranty.
    Afterwards, to wit, on the 30th of August, 1832, Archibald and William Lytle sold, and by deed of that date conveyed, all their interest, as heirs of Mrs. Denson,, to-the lessors of the plaintiff, to recover which interest this-action was brought.
    The court charged the jury as follows: “That if they believed John Nicliol, Sr. conveyed said land by deed to Henry Ingraham alone, and not to Susan, his wife, that changed the descent of the land; and said Ingraham’s subsequently devising said land to his wife Susan, had the same effect as to the purposes of descent, as if it had been devised to her by a stranger; and that at her death, without issue, said land would descend to her brothers and sisters equally, as well those of the half blood, on the mother’s side, as those of the whole blood, on the father’s side; and if the jury should believe these facts from the proof, they should, as to this ground, 'find for the plaintiffs; that the case of Butlei vs. King, (2 Yerg. Rep. 115,) though it seemed to him broad enough to cover this case, deciding the principle in dispute here in favor of defendant, yet the point in dispute in this case was not raised by the record in the case, in 2 Yerg. Rep. The court also charged the jury, that if they believed from the proof, that the lessors of the plaintiff, by their deed to defendant, conveyed only their part of said land, which descended to them from Susan Denson, and warranted the title to him, that that warranty would not estop them from purchasing the share of said Archibald and William Lytle in said land, and maintaining this suit against defendant for those shares so purchased from said Lytles. To all which opinions and charges of the , r ■, , tL, . ° ,. court, defendant excepted. The jury found a verdict for the plaintiff; the defendant moved the court for a new trial, which motion the court overruled; to which opinion defendant excepted, and prays this, his bill of exceptions, »to be signed, sealed, and made a part of the record.
    
      R. C. Foster and R. Alexander, for the plaintiff in error,
    contended, 1st, that in this case, the brothers of the half blood could not inherit, but that the whole inheritance vested in the brothers and sisters of the whole blood. They cited and commented upon the acts of 1784, ch. 22, sec. 3; 1784, ch. 10, sec. 3; 1796, ch. 14: Butler vs. King, 2 Yerg. Rep. 116: Roberts vs. Jackson, 4 Yerg. Rep. 321.
    2. They insisted that the previous deed made by the lessors to the defendant of all their interest, in which there was a warranty of title, estopped! them from claiming any subsequently acquired interest. For which they cited, 2 Black. Com. 295: 3 Peters’ Con. Rep. 262-3: Henderson vs. Overton, 2 Yerg. Rep. 396
    Sconce, for defendants in error.
    The only question for the court to decide is, whether thé maternal half blood are entitled to share equally with the whole blood in the division of this land. .
    The common law of England excluded the half blood from the inheritance of real estate, and this was the law of North Carolina until the act of 1784' of that State, which abolished the common law in this particular, and gave the half blood an equal claim with the whole blood. The 3d section of said statute enacts, “that if any person, dying intestate, should, at the time of his or her death, be seized or possessed of, or have any right, title, or interest, in or to any estate or inheritance in lands or other real estate in fee simple, and without issue, such estate or inheritance shall descend to his or her brothers, and for want of brothers, to his or her sisters, as well those of the half blood as those of the whole blood; to "be divided amongst -them equally, share and share alike, as tenants in common, and not as joint tenants; and each and every one of them shall have, hold, and enjoy, in their respective parts or portions, such estate or inheritance as the intestate deed seized or possessed of, or entitled unto.”
    Now here the Legislature -laid down a general law of the land, a universal rule, applicable to all cases whatev-ever of a person dying intestate without issue, seized of any inheritance and having brothers and sisters of the whole and half blood. It abolished the common Jaw which excluded the half blood from the inheritance; declaring in the preamble to said section, that such a doctrine was founded in' feudal principles, and totally inapplicable to the State of North Carolina, and put the half blood on an equal footing with the whole blood. If the legislature had stopped here, there could be no doubt as to the equality between the two bloods, for the statute expressly declares, that if any person shall die intestate without issue, seized of any inheritance, &c. such inheritance shall descend to his or her brothers, &c. as well to those of the half, as to those of the whole blood. No matter by what means the inheritance came to the intestate, whether by descent, by purchase, by gift, by devise, or by occupancy, still the comprehensive words of the statute would have included the half blood, and put them upon an equal footing with the whole blood in every case. But it seems the legislature thought proper to except from this general rule one class of cases, and only one, which they did, in the following words, viz. “Provided aiways, that when the inheritance shall have descended on the part of the father, and the issue to whom such inheritance shall have descended, shall die without issue, male or female, but having brothers or sisters of the paternal side, of the half blood, and brothers and sisters of the maternal side, also of the half blood, . such brothers and sisters, respectively, ot the paternal line, shall inherit in the same manner as brothers and sisters of the whole blood, until such paternal line is ex-bausted of the half blood; and the same rule of inheritance and descent shall prevail amongst the half blood of the maternal line, under similar circumstances, to the exclusion of the paternal line.”
    Now, this exception shows that the legislature understood themselves as having made a general rule which included the half blood in every possible case. Otherwise, why did they make the exception? If they had thought the general rule would have excluded the maternal half blood in cases of descents on the part of the father, they would have deemed the exception unnecessary, and have omitted it. But they did not so understand the general rule. They knew it would include the half blood in every case, no matter by what means the estate should come to the intestate, and therefore, wishing to limit the general rule which they had before laid down, they pointed out the particular instance in which it should be suspended, viz. in cases of descent, (i. e.) when the land came by descent from the father, the maternal half blood was intended to be excluded until the paternal line was exhausted, and likewise when it came by descent from the mother, the paternal half blood was intended to be excluded until the maternal line was exhausted. But no other case than, that of descents was excepted from the general rule. They did not except the case of purchase, or gift, or occupancy or devise. Their not having done so, is conclusive that they did not intend it; that they only intended to except the case of descents. For how easy would it have been, while they were acting on the exception, to have included other cases within its benefit, if they had so intended.
    The construction here contended for, is supported by the whole current of decisions in the courts of North Carolina upon this statute since its passage. The case of M’Kay vs. Hendon, 3Mur. Rep. 209, isa case precisely in point with the present. There the intestate died without issue, and seized of lands which he took by devise from his paternal grandfather. He left, at the time of his death, the defendant, a sister of the whole blood, on the father’s side, and the plaintiffs, brothers and sisters of the half blood, on the mother’s side. The only question was, whether the half blood were entitled to an equal division with the whole blood, if the land came by descent (said the court) from the grandfather, (for the intestate was one of the heirs at law of his grandfather) the paternal line will inherit, in exclusion of the maternal half blood; but if by purchase, the'half blood will be entitled. And the court decided, that as the intestate took a different estate by the will, than if the grandfather had died intestate, he took by purchase, and not by descent, and consequently the maternal half blood was entitled.
    The case of Pipkin vs. Coor, decides the same principle. The intestate, in this case, died seized of lands which came to him by descent on the death of his father, leaving brothers and sisters of the whole blood, and a maternal half brother-, and the court excluded the maternal half brother on the express grounds, that it was a case of lands descending to the intestate from his father. The case of Ballard vs. Hill, and other cases decided in the courts of North Carolina, (for the present question was often agitated there, and as often decided in favor of the construction now urged) might be cited and commented uppn, but it is believed those already referred to will suffice, the more especially as no respectable authority can be produced on the other aide. It is true, the case of Butler vs. King, (2 Yerg. 115) which is so confidently relied upon by the opposite counsel, may come in conflict with the interests of the defendants in error, but while it does so, it comes in contact with the plain and obvious construction of the statute, as well as the whole body of adjudicated oases in North Carolina, the State in which the statute had its existence. And it may safely be conjectured, that some of the judges who sat upon the trial of the above causes, were in the very legislature which passed the statute. At least all, or a great portion of them, were educated in the same State, and grew up with the Statute and its exposition, and consequently they were well qualified to give it that construction which was the genuine one.
    And, although in the case of Butler vs. King the process of reasoning by which Judge Haywood arrived at ■ the ultimate decision is false and erroneous, yet the decision itself is correct, and in accordance with the construction of defendant’s counsel; for that was a case of descent and not purchase. He therefore based his reasoning upon false grounds. The case of purchase was notbefore the court, nor argued by the counsel, and consequently any dicta he may have used touching a case of purchase ought not to be regarded, being irrelevant and wholly foreign to the mailer in issue. And that it was a case of descent, I refer the court to the following authorities: Con. Hep. 297: 2 Law Repos. 406: Powell on Dev. 427-8: Black. Com. 241. In all of which it is expressly laid down that if a man devise to his heirs at law, the devise is void, and they take by descent. But if the devise be of a different estate than the heir would take by descent, then he takes by purchase. And from the report of Butler vs. King, it appears that the intestate took the same estate by the devise that he would have taken by descent. But admit the case of Butler vs. King to be law, still it is inapplicable to the case before the court. In that case the land came directly from the father to the son, but in this it came by deed from John Nichoi, Sr. to Ingraham, and from Ingraham, by devise, to the intestate. Ingraham was a stranger in blood to the Nichoi family, and if he had died intestate, the estate would have gone to his general heirs, and not to the in- . . , ° , . , , , , testate. And therefore it cannot be said to be such a coming from the father to the intestate as in the case of Butler vs. King.
    But again, the rule in Butler vs. King seems to be a vague one; for what kind of a coming of the estate is meant? A direct or a remote one? And where shall be the limit? The first, second, third, fourth or fifth transfer? ■ Thus we see the confusion such a rule would necessarily introduce.
    It is therefore better to adhere to the obvious meaning, of the statute, and the unbroken chain of decisions in the courts of North Carolina upon it ever since its passage.
    
      J. Marshall, on the same side,
    cited and commented upon the above acts of assembly, and also Swan’s lessee vs. Mercer, 2 Hay. Rep. 115, 246: Pipkin vs. Coor, 1 Car. Law Repos. 103: S. C. 2 Murphy, 231: M’Kay vs. Hendon, 3 Mur. 209: Doe vs. Shepherd, 3 Mur. 353: Ross vs. Toms and wife, 2 Hawks. 9: Beasly and wife’s lessee vs. Whitehurst, 3 Hawks: Cutler vs. Cutler, 2 Plawks. 324.
    Upon the second point, he insisted that the interest which the lessors acquired by descent from Mrs. Den-son only passed by their deed of 28th February, 1S29, and that the warranty only extended to the interest they then had, to wit, two-sixth parts; and that consequently they were not estopped from claiming the interest which they subsequently acquired by purchase from Archibald and William Lytle.
   Catron, Ch. J.

delivered the opinion of the court.

Mrs. Denson had acquired by will, from her former husband, Ingraham, a tract of land lying in Williamson: and she died intestate, seized in fee, leaving two half brothers on the mother’s side, the Lytles, and brothers and sisters of the whole blood, the Nichols; and the question is, did the maternal half brothers inherit equally with the brothers and sisters of the whole blood.

The statute of descents of 1784 (Sec. 3,) declares, that if any person die intestate seized of lands in fee, and without issue, the estate shall descend to the brothers, as well those of the half blood, as those of the whole blood; and the act of 1797, ch. 14, lets in the sisters equally with the brothers, in the same general terms. Take the language of the statutes in disconnexion with the common law canons of descents, and no reason would seem to exist to raise a doubt, but that the half blood in the maternal line were included; every plain reader would pronounce William and Archibald Lytle, the brothers of the half blood of Mrs. Denson, entitled to share equally with the brothers and sisters of the whole blood. This being the plain import of the statute, the principal inquiry is, has the legislature made any exception cutting off the maternal half brothers. The first exception is founded in the same section with the enacting clause, that if lands descend on the part of the father, and the heir die, transmitting them a second time, having no issue, but leaving brothers or sisters of the half blood on the father’s side, and brothers or sisters also of the half blood on the mother’s side, the brothers and sisters of the paternal line shall inherit to the exclusion of those in the maternal line, and in common with brothers and sisters of the whole blood. And so, if the lands descend on the part of the mother, the maternal line shall exclude the paternal; so that the inheritance shall continue in the line of the first purchaser. This exception has no reference to new-purchased lands, and a first descent; and such was Mrs. Denson’s case. Had the lands in controversy been cast upon her by descent, from her father Nichol, then the exception would exclude the Lytles.

The seventh section of the act contains a second exception: that if a child die seized of lands in fee, acquired by purchase, leaving no issue, brothers or sisters, or the descendants of such, then the father shall take if living: if not, the mother, (by the act of Oct. 1784, not in fee, but for life,) and on her death, the collateral heirs in the paternal line shall exclude those of the maternal line.

Mrs. Denson’s case is not within the letter of this exception; still it has been supposed it furnished a key to the mind of the legislature, from which it must be inferred that the maternal half blood is excluded. It was holden by judge Haywood, in Butler vs. King, (2 Yerg. 166,) that by the acts’of April and October, 1784, it was never intended that brothers or sisters of the half blood on the side of the mother should inherit in any case; that the statutes exclusively related to the half blood in the paternal line, in reference to new-purchased lands, as well as to those descended from the father. In that case, the father devised lands in fee to his two sons, and died; the mother married again and had issue, a daughter; then one of the sons died, leaving his brother of the whole blood and the maternal half sister; and the question was, whether the sister took with the brother as heir, and judge Haywood gave it as his opinion she did not; that the child of the mother could not take whilst there were heirs in the paternal line: otherwise by the death of the daughter, the land might descend to the female stock, or even to strangers, which was never intended; that the male stock was favored in every case.

The opinion is ingenious, but we fear almost an incomprehensible reading of the statute by judge Haywood, not the court. No case on the title was presented to the court, which decided it had no jurisdiction to try title in a case of mere partition; that the title must be settled at law, and ordered the petition to be dismissed. The other three judges, composing the court with judge Haywood, formed no opinion on the statutes of descent, having had no jurisdiction to place a construction on THEM.

Haywood, Brown, and other distinguished lawyers of North Carolina, held that the statutes of 1784, with its explanation and amendments of the fall session of that year, (ch. 10,) should be construed in connexion with the common law canons of descent; that in no other way could its true meaning be arrived at. This reasoning, after twenty years of litigation, was found by the courts of that State partly true, but mainly falacious. The question brought before the courts in Swann vs. Mercer, (2 Hayw.) in 1805, and in Doe vs. Shepard, and Ballard vs. Hill, on the same title in 1819, (3 Murph.) was, whether the half blood in the maternal line of the purchasing ancestor, could inherit in any case. The doctrine was examined with a depth of research and a degree of ability by the counsel on the respective sides, that challenges admiration; that, perhaps, has no equal in the American courts, on descents; and, that nothing short of the most tedious and anxious litigation could produce. The recondite construction contended for by judge Haywood and Mr. Brown, for a time prevailed; Swann vs. Mercer, having been decided in exclusion oí the maternal line; but on a bill of review, the decree was reversed, and eventually, in 1819, the construction was settled according to the general law terms of the statute, that the maternal stock took equally with the paternal.

The construction assumed by judge Haywood, that the maternal half blood were not included in the statute of descents, relies for support upon the sixth and seventh canons of descent. 1st. That the collateral heir of the person last seized, must be the next collateral kinsman of the whole blood. 2 Bl. Com. 224 and 227. As if the father have two sons, A and B, by different wives, they shall never inherit of each other, but the estate shall rather escheat to the lord. And,

2nd. That in collateral inheritances, the male stock shall be preferred to the female; that is, kindred derived from the blood of the male ancestor, however remote, shall be admitted before those from the blood of the female, however near; unless the lands have in fact descended from the female. 2 Bl. Com. 234. The argument is, that by the first canon recited, the whole blood take of course; and by the other, the descendants on the mother’s side are excluded, and were not provided for by the statute, This supposition is met by the conclusive fact, that before the passage of the act, the half blood of the male and female stocks were equally excluded by the sixth canon of descents, and the letting in either was an independent original provision unknown to the common law. The words of the statute are general; it declares that on the death of any person without issue, his fee simple estate shall descend to his brothers, or to his sisters, as well those of the half blood, as those of the whole blood. To hold that the half brothers on the mother’s side could not inherit, would be in violation of the plain import of the words used by the legislature; would be making an exception the legislature did not see proper to make, and one this court has often holden it : 1 , -r,, , ,. r . has no power to make, lhe estate descending irom the first purchaser being uncontrolled by the common law, the Lytles took by the general words of the statute equally with the brothers and sisters of the whole blood of Mrs. Denison. Such has been the final result of the adjudications of North Carolina, and which we follow.

The consequences of this decision are not so readily foreseen; it seems to proceed upon grounds very simple and plain, bit when the principle of letting in the half blood, generally, is applied to cases of remoter collaterals, by the rule the statute prescribes, it will be found to result in most curious consequences; as when we have to trace up to the first purchasing ancestor, and then find the nearest heir, pursuing the male and female stocks, and half or whole blood, without discrimination, the heir may often be found of no kindred to the purchaser; and this was the controlling consideration that led to judge Haywood’s opinion in Butler vs. King. Suppose A dies, leaving a younger half-sister on the mother’s side his heir; then the mother dies, the father marries and has children, and the half-sister dies, and her brothers &c. on the father’s side of the half blood take. In such a case, the estate descends to strangers in blood to the acquiring ancestor, if ancestor he may be called. This, however, matters little in a country where real estate and personal, are almost equally regarded. How it will be with posterity, it is-immaterial to us; if the course of descents be unsuited to the then condition of society, it is for the legislature to alter the law, not this court. All rules of succession are the creatures of the civil polity, (2 Bl. Cam. 210,) mere positive rules of property, which every country and age must frame to suit its circumstances.

Judgment affirmed. 
      
       The Reporter argued the cause of Butler vs. King, against the claim of the half blood. He did not contend for the construction of the statute as given by judge Haywood. The devise in that case was to the two only sons of the testator; and the positions he assumed and endeavored to enforce, were, 1st. That lands acquired by purchase descended to the brothers and sisters of the whole and half blood equally. 2nd. That when they were derived by descent from the father, that then the brothers and sisters of the half blood on the part of the mother were excluded. And 3d, That in this case they were vested by descent in the two sons of the testator; for, although the father devised the land to his two sons, yet, as he gave by his will precisely the same interest which the law would have given without it, by descent, the will was inoperative, and they took the lands by descent. It was the understanding of the Reporter, at that time, derived from conversation with some member or members of the court, that the result of judge Haywood’s opinion was concurred in, but that it was concurred in for the reasons above stated, that is, because the court believed the sons took by descent from the father; in which case, the sister of the half blood on the part of the mother, was excluded by the proviso -contained in the act.
     