simple with full covenants of warranty, they are estopped to claim, as against their deeds, any right of survivorship under the will.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 19, Estoppel, §§ 19-21.]

Appeal from Superior Court, Wake County; Ward, Judge.

Action by Sarah Walker and husband against Ella Taylor. Judgment for defendant. Plaintiffs appeal. Affirmed. J. C. L. Harris, for appellants.

BROWN, J. The plaintiff claims the whole of the land in controversy as the survivor of three daughters of Gatsey Mitchell under the terms of her will executed November 17, 1886, devising the land to her three daughters, Sarah Walker, Louisa Ray, and Isabelle Mitchell, as follows: "Item 5. I devise my real estate, consisting of a house and lot on Cabarrus street, where I now reside, to my said executor and trustee, to be by him held in trust for my said three daughters for and during their natural lives and for the survivors or survivor for and during her and their natural lives, with remainder over to the heirs-at-law of my said three daughters; and should any one of the said three daughters die without issue of her body, then such daughter's share shall at the final distribution of said estate go to the others share and share alike. My desire being that my said daughters shall live at the old home as long as they live; but should either of them at any time desire to hold her part in severalty, then my said executor and trustee is hereby commanded, upon the written request of either of them, to sell said property within as short a time as can be so as not to sacrifice the same, and equally divide the proceeds between such of said daughters or their heirs as may be living at the time, always to the total exclusion of my said son Henry and his heirs."

The land in controversy is a part of the above-named Cabarrus street lot conveyed by deed to Louisa Ray and Isabelle Mitchell in the division of said lot by deed executed August 31, 1893, by Andrew Syme, administrator and trustee, and also by these plaintiffs. It appears that on August 29, 1893, said Syme and Louisa Ray and Isabelle Mitchell executed a similar deed to Sarah Walker for the other part of the Cabarrus street lot. Both deeds are in form deeds of bargain and sale in fee simple, with full covenants of warranty. Louisa Ray died and Sarah Walker acquired her share by inheritance. Isabelle Mitchell devised her share to defendant, Ella Taylor, by will duly executed January 3, 1902.

We are of opinion that the plaintiff did not acquire the entire lot by survivorship, and that she is not entitled to the share which Isabelle Mitchell devised to the defendant, for two reasons: (1) The rule in Shelley's Case is applicable under the terms of the

devise made by Gatsey Mitchell to her three daughters, who took thereunder a joint estate of inheritance in fee. Where a freehold estate is, either jointly, severally, or successively, given to two persons who are capable of having a common heir, with remainder to their heirs, the rule operates, and such persons take a joint inheritance in fee. 1 Prost. on Estates, 315; 25 A. & E. Encyc Law, p. 646, and cases cited. Where a devise of an estate was made to W. and P. of the use of two tracts of land during the respective lives of each, but at their decease to descend to their heirs, it was held that W. and P. took a fee simple. McFeely v. Moore, 5 Ohio, 464, 24 Am. Dec. 314; King v. Beck, 12 Ohio, 390. (2) Whether the testator of the defendant took an estate of inheritance or not, or whether Sarah Walker was entitled under the will to possession of the whole for life, it is plain that these plaintiffs are estopped to deny that such testator, Isabelle Mitchell, was seised in fee of the land which she devised to defendant. The deed executed August 31, 1893, by these plaintiffs, Sarah Walker and her husband, and Hannah Collins, now Jones, to Louisa Ray and Isabelle Mitchell, is based upon a valuable consideration, and conveys the lot in fee with full covenants of warranty. is elementary learning that these plaintiffs cannot now deny the fee-simple title of their grantees, and whatever interest they or elther of them acquired under the will of Gatsey Mitchell passed by such deed. Foster v. Hackett, 112 N. C. 546, 17 S. E. 426; Hallyburton v. Slagle, 132 N. C. 955, 44 S. E. 655; Bank v. Glenn, 68 N. C. 38; Taylor v. Shufford, 11 N. C. 131, 15 Am. Dec. 512; 16 Cyc. 889. Affirmed.

It

(144 N. C. 170)

In re PARKER. (Supreme Court of North Carolina. March 20, 1907.)

HABEAS CORPUS-CUSTODY OF CHILD.

A writ of habeas corpus for the custody of a child 11 years old will not issue on behalf of its guardian, where it does not appear that the child is detained against its will, but is well cared for by the person having its custody, who took it at birth and has cared for it ever since at her own expense, and her character and that of her husband is good, and the training given to the infant is such that it would be to its best interest to remain in her custody. [Ed. Note. For cases in point, see Cent. Dig. vol. 25, Habeas Corpus, § 84.]

Appeal from Superior Court, Duplin County; E. B. Jones, Judge.

Application by Egbert Hardy for habeas corpus for the custody of Samuel Parker. From a judgment denying the writ, relator appeals. Affirmed.

Stevens, Beasley & Weeks, for appellant. W. S. O'B. Robinson, for appellee.

CLARK, C. J. The petitioner, Egbert Hardy, was on December 12, 1905, on his ex parte application, appointed guardian of his nephew, Samuel Parker, an infant without property. The mother of said Samuel died at his birth, and the child was taken by his aunt, Mrs. Swinson, with whom he has been ever since, and with whom he still remains. The child's father died a year after its mother. Notice of the application for guardianship should have been given to Mrs. Swinson and other relatives, as required by Revisal 1905, § 1772. Failure to do this is an irregularity which does not render void the appointment of guardianship; but certainly such appointment, being without notice to the relative then in charge of the infant, is not binding upon her. She had no opportunity to oppose the order appointing the guardian, nor to appeal from it, and it is not a decree disposing of the custody of the child as against her. Besides, "it is well settled that the right of guardianship cannot be tried on habeas corpus" (15 A. & E. [2d Ed.] 184); nor "to determine the right of guardianship"; nor "to decide as to conflicting rights to personal custody." Id. 156. The petition set out sufficient matter to cause the writ to issue, but, upon the investigation, it did not appear that the child was detained against its will, and the court found as facts that the child is about 11 years of age, is well cared for by Mrs. Swinson, who took the infant at its birth and has cared for and nurtured it ever since at her own expense; that the guardian has contributed nothing to that end; that the child is sent to school; Sabbath school, and taken to church regularly; and that the character of his aunt and of her husband is good, and the care and training given by them to the infant Samuel Parker are such that it would be to the best interest of said infant for him to remain in the care and keeping of his said aunt and her husband. There being no illegal restraint shown upon the above findings, the court properly remanded the infant to the custody of his aunt.

The object of the writ of habeas corpus is to free from illegal restraint. When there is none, the writ cannot be used to decide a contest as to the right custody of a child, except when the contest is between the parents of the child. Revisal 1905, § 1853; State v. Cheeseman, 5 N. J. Law, 511; State v. Clover, 16 N. J. Law, 419; Foster v. Alston, 7 Miss. 406, and numerous other cases cited in 15 A. & E. (2d Ed.). in note 2, p. 156, and in note 2, pp. 184, 185, 186, and notes. The rule is clearly stated by Chancellor Kent. In Wollstonecraft's Case, 4 Johns. Ch. (N. Y.) 80, he says that the sole function of the writ in such cases is "to release the infant from all improper restraint, and not to try, in this summary way, the question of guardianship, or to deliver the infant over to the custody of another; that it is only to de

liver the party from illegal restraint, and, if the infant is competent to form and declare an election, then to allow the infant to go where it pleases, and, if too young to form a judgment, then the court is to exercise its judgment for the infant." In short, the writ of habeas corpus cannot be used as a claim and delivery of the person. The guardian must assert his right to the custody of his ward by a civil action against the persons now in charge of him, while they, in turn, if so advised, can take appropriate steps to set aside the guardianship. In this summary proceeding by habeas corpus, the court can only consider the rights of the child, whether he is under illegal restraint or not, and, if he is not, the court will follow the course laid down by Chancellor Kent quoted supra. Affirmed.

HOKE, J. (concurring). I concur in the disposition made of this case, for the reason that the placing of the child was in the sound legal discretion of the court; and that, on the facts presented, such discretion was properly exercised when the child was left in the control and custody of its aunt, Mrs. Swinson. If, as the principal opinion assumes, the appointment of Egbert Hardy as guardian was only irregular, then such appointment is not open to collateral attack, and stands as the judgment of the court until same is reversed on appeal or set aside on motion; and this both as to Mrs. Swinson and all others. Williams v. Pender, 127 N. C. 481, 37 S. E. 495; Black on Judgments. § 261. Hardy, then being the guardian of the person, duly appointed, and the parents of the child being dead, has the prima facie right to the custody of the ward; but this superior right of the guardian does not obtain necessarily, nor as a matter of law. The authorities are to the effect that, in this country, the disposition of the child rests in the sound legal discretion of the court, and that it will be exercised as the best interest of the child may require. Newsome Bunch, 143 N. C., 54 S. E. 785; Tiffany on Persons & Domestic Relations, p. 308; Shouler on Domestic Relations, § 240. The best interest of the child is being given more and more prominence in cases of this character, and, on special facts, has been made the paramount and controlling feature in wellconsidered decisions. Bryan v. Lyon, 104 Ind. 227, 3 N. E. 880, 54 Am. Rep. 309; In re Welch, 74 N. Y. 299; Kelsey v. Green, 69 Conn. 291, 37 Atl. 679, 38 L. R. A. 471.

V.

Again I think it is well established that while, in habeas corpus proceedings concerning the custody of children, the power of the court is ordinarily restricted to freeing them from illegal restraint, and allowing them to select their placing, or go where they please, this is only true where the child, in a

given case, is of years of discretion and sufficient intelligence to determine the question for itself; and, where it is otherwise, when the child is not of proper age or sufficient intelligence to determine for himself, the court must decide for him, and make orders for his being placed in proper custody. Musgrove v. Kornegay, 52 N. C. 73; In re Wollstonecraft, 4 Johns. Ch. (N. Y.) 80; Mayne v. Baldwin, 5 N. J. Eq. 454, 45 Am. Dec. 397; Church on Habeas Corpus, & 439; 15 Amer. & Eng. Ency. p. 185, note 5. In Musgrove v. Kornegay, supra, it is intimated that, so far as the matter is dependent on an arbitrary limit, the age of 12 years in this country, and in cases of this kind, will be considered the age of discretion. In England, it seems to have been 14 years, and there being two children, one above and one below this age, the court, in determining upon the judgment, said: "As to the one over 12 years of age, we find it settled that the proper order is to discharge the infant and permit him to go where he pleases. And, in respect to the other, who is under the age of 12, we find, by the same authority, that the proper order is to restore him to the custody of his father." In Mayne v. Baldwin, supra, the child being five years and seven months of age, the court said: "In this case, the child is of such tender years the father could properly apply for the writ of habeas corpus in his own right without the privity of the child; and it is a case in which, for want

of discretion in the child, it is proper that, instead of merely delivering the child from improper restraint, an order should be made delivering the child to its father"-citing People ex rel. Barry v. Mercein, 3 Hill (N. Y.) 399, 38 Am. Dec. 644. And, in the notes of Ency. above referred to, it is said: "The power of the court in habeas corpus to determine the right of custody and to award it accordingly is well established by adjudged cases, both in the English and American courts"-citing many cases.

In at least three of the authorities cited in the principal opinion, the child had reached the age of 12 and over; and the child was set at liberty because it was held to have the necessary discretion to make such an order proper. Section 1853, Revisal 1905, was enacted to enable the court to make proper regulations as to the care and custody of children as between husband and wife who are living in a state of separation, without being divorced. It seems to be confined to such cases, and has, to my apprehension, no perceptible bearing on the case before us. I concur in the decision for the reason that it affirmatively appears that the best interests of the child requires that it remain, for the present at least, with its aunt, the respondent, and that the legal discretion vested in the court in such cases has been properly exercised.

WALKER, J., concurs in the opinion of HOKE, J.

(61 W. Va. 509)

BENTY. TRIMBOLI et al (Supreme Court of Appeals of West Virginia. March 12, 1907.)

1. EVIDENCE-CONTRACT-CONSTRUCTION.

Letters and plats present and referred to at the time of a contract may be admitted in evidence, not to contradict the terms of a written contract, but to explain any ambiguity therein.

[Ed. Note. For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 2066-2084.]

2. HIGHWAYS PRIVATE ROADS TION-INJUNCTION,

OBSTRUC

Equity will interfere by injunction, at the suit of a private individual, to restrain others from obstruction of public or private roads, where the obstruction will work a special and peculiar injury to him.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 25, Highways, §§ 430, 431; vol. 40, Private Roads, 88 33, 34.]

(Syllabus by the Court.)

Appeal from Circuit Court, Randolph County.

Bill by James A. Bent against Vincenzo Trimboli and others. Decree for defendants, and plaintiff appeals. Reversed.

and much more convenient to me, and I suppose, of course, the court would open such road at the instance of either of us, but that is one reason we might agree to some such arrangement between ourselves and save that trouble; and so I would like to buy of you the strip lying along the east end of my Shoemaker land, which, guessing at the area, contains in the neighborhood of from 15 to 20 square rods, and in connection with the pur chase arrange to build a road up near the little stream, through your land, and thus give us both a good outlet to the Seneca road."

On March 26, 1903, Bent was in Cumberland, and he and Barnes entered into the following agreement: "It is agreed by and be tween P. Clarence Barnes, of Allegheny County, Maryland, and James A. Bent, of Elkins, West Virginia, that in consideration of the said James A. Bent making a good substantial public road between his land and the Seneca road, through the lands of the said P. Clarence Barnes, near the stream, that the said P. Clarence Barnes hereby agrees to convey to the said Bent the triangular piece of land

MILLER, J. The appellant, Bent, a resident of Elkins, W. Va., by deed of October 11, 1902, from Mary E. Shoemaker and others, acquired title to two acres of land, more or less, abutting upon the north side of the Seneca road, so called, near the city of Elkins; and by deed of November 1, 1902, from Lewis Woolwine and wife, he acquired title to three and a fraction acres back of the first tract, but intersected by a sharp triangular piece of ground owned by one P. Clarence Barnes, of Cumberland, Md.; the sharp angle pointing westward between these two tracts. Shortly after acquiring these two tracts of land, Bent corresponded with Barnes on the subject of a roadway through his triangular tract, so as to obtain access to his Woolwine land, and, on December 27, 1902, wrote Barnes, referring to previous correspondence, and the substance of that letter applicable here is: "You will recollect I inclosed map showing the location of the strip of land I wanted to buy, the lands owned by me, and that I wanted to make a new road to get to my Woolwine land, and incidentally to accommodate you with an outlet. It would seem that the land I speak of is practically of no use to you, and I am willing to give you $50 per acre for what I want, and at the same time give you a road from your land out to Seneca road, along or near the stream. * * The fact is, myself and grantors have had possession and under fence for about 15 years about half of the wedge-shaped piece of land, and a road through it, but it is too steep, and I want to make a road from the Seneca road along the east side of my Shoemaker land, through the neck of your land to my Woolwine land, which is practically the only outlet for you,

56 S.E-56

long, and five rods wide where it adjoins said road to be constructed; the same containing about seventeen square rods; the said James A. Bent agreeing that the said road shall be constructed within one month from the date hereof, and that it shall at all times be open to the said P. Clarence Barnes and the public generally." Soon after making this agreement (the record does not show the exact time), Bent says: "I made the road, just as I had agreed, and understood I had agreed to by said contract, along near the stream,

and fenced off the strip of land which said Barnes had in said contract between us agreed to convey to me, by a fence along the east end of it and immediately west of said road." Bent claims that after building this road Barnes was in Elkins, and that he personally ordered a conveyance for Barnes to drive out to his land, at which time Barnes wanted to sell him the remainder of his tract, and Bent then went over with Barnes the same matter, with the plat just as he had done before, pointing out the location of the road as he had made it, the stream and the lot he would be willing to buy east of the road he had made out to the east line of his Woolwine land, but that Barnes refused to sell unless he could sell the whole tract.

On June 22, 1903, Barnes and wife conveyed his tract of land to the defendant Vincenzo Trimboli, and the deed recites a consideration of $500 cash, describing the land by metes and bounds (according to the original description) as containing 6 acres and 21⁄2 poles, more or less, but with this saving clause: "Save and excepting therefrom a narrow strip triangle in form on the western end of said land, which, by agreement between James A. Bent and the grantors hereof

executed in March, 1903, was granted for a public road to be at all times open to the proprietor of this land and the public generally." The record shows that, before Trimboli acquired the Barnes tract, he had been on the land, and had seen where the road was located, and that Bent had the triangular piece lying west of the road inclosed by fence. After Trimboli bought his land he tried to purchase from Bent the triangular piece inclosed by Bent west of the road, and built a house upon his land near the road built by Bent, and used this road to convey to its location the material for the house, and it was used by him continuously thereafter as his only means of ingress and egress to and from his land, and also by Bent, his tenants and others, as a public way, without any controversy about the location or character of the road until about December 1, 1903, when it seems Trimboli fell out with some neighbor tenants of Bent and fellow countrymen of his, who traveled over this road to some water wells on Bent's land near Trimboli's house to get water. Upon his cross-examination, after being referred to the facts just recited, he was asked: "Why then did you block up the Bent road by what you call a gate?" to which he answered: "To close up the road, because there was somebody there I did not like. Q. You had a lock on the gate? A. Yes." His testimony shows that he was referring to a Motto family as the "somebody" he did not like; and he admits that, after the injunction was awarded in this case, he threw the Bent road full of brush, and in that part of it which extended through the Bent land.

It was to redress and prevent this wrong and injury that Bent filed the present bill against Vincenzo Trimboli, Gaspero Francesco, and Joseph Trimboli, doing business in the name and style of Vincenzo Trimboli & Co. Trimboli & Co. were made parties to the suit because it appeared that Vincenzo Trimboli had, by deed of July 27, 1903, undertaken to convey the Barnes land to Vincenzo Trimboli & Co. The deed seems to have been acknowledged and recorded. The defendants, aside from Vincenzo Trimboli, answered that, prior to the making of this deed, negotiations for the purchase of the land had been pending be tween the parties, but were never consummated, and that they had no interest in the land conveyed by the deed, and had never been guilty of barricading or obstructing the right of way claimed by Bent. No deed was ever made by Barnes to Bent for the triangular tract which Barnes agreed by the contract to convey to Bent in consideration for his building the road; but the record shows that demands had been made by Bent upon Barnes for such deed, but the deed has never been made. The bill does not make Barnes a party to the suit, and it is not filed for a specific execution of the contract between Bent and Barnes; indeed, the plaintiff says in terms that it is not the purpose of this suit to litigate especially the title to said strip of

land which he so purchased of said Barnes, further than to show that he is the owner of it, and that the defendants have not so far claimed it, but from time to time tried to buy it of plaintiff, and that its eastern boundary is and lies with the western boundary of said road through it. The prayer of the bill is that the defendants and each of them, by mandatory and restraining order, be commanded to at once remove from said road the obstructions placed thereon by them or any of them, and that they be perpetually enjoined and restrained from any future obstruction of said road, or in any manner interfering with the plaintiff or any one else in the proper and legitimate use of and traveling over the same. The bill is not what it might have been perhaps, a suit to specifically execute the contract with Barnes, and to obtain a deed from him for the triangular tract; for it was Barnes, and not Trimboli, who would under the contract have been required to make the deed to Bent; for whatever land Barnes agreed to convey to Bent was specially excepted from the conveyance of Barnes to Trimboli. The bill is undoubtedly framed upon the theory that Bent had built the road, and had taken possession of the triangular tract which Barnes agreed to convey to him in consideration thereof, and that the contract had been so far executed by him, that he was entitled to have his rights protected as against the defendants, whom the bill alleges were obstructing the road. The defendants all demurred to the bill. Vincenzo Trimboli answered separately. No point is made of want of parties in the demurrer or in the answer. On the theory of the bill, conceding that the road had been built according to the contract, and had be come an established public road, we think the bill presented a proper case for the relief prayed for. The demurrer seems never to have been acted upon by the court below.

The defense interposed by Vincenzo Trimboli is, first, that the plaintiff did not construct a good, substantial public road, as provided for in the contract; second, that he did not construct said road on the location provided for in said contract-that by the terms of the contract he was to construct a good and substantial public road at the base of an isosceles triangle to be cut off of the western end of said Barnes tract, said triangle to be seven rods long and five rods wide, and to contain about 17 square rods. The testimony taken in the cause relates mainly to the character of the road which was built by Bent, to the facts and circumstances surrounding the parties at the time of the contract, and to a determination of the place of location intended. The evidence shows that Bent already had a road substantially on the location on which defendant claims his contract required him to build the new one. Bent produced in evidence what he said was the original pencil plat, which he had made in Cumberland, and which the parties had