142 N.C. 154 | N.C. | 1906
after stating the. case: We need only consider the question raised as to the validity of the Act of 1905, ch. 93 (Rev., see. 1591), by which all parties not in esse who may take property, in expectancy or upon a contingency, under limitations in deeds or wills, are bound by any proceedings theretofore had for the sale thereof, in which all persons in being who would have taken such property, if the contingency had then happened, have been properly made parties, it being expressly provided that the act shall not affect any vested right or estate. It is not questioned that the proceeding under examination was regularly conducted in all its stages or that the title which the defendant will acquire under the deed tendered by the plaintiff will be undoubtedly a good and perfect one, if that act is a valid exercise of legislative power.
The rule applicable 'to cases of this description is substantially the following: If the thing wanting or which failed to be done, and which constitutes the defect in the proceed
In regard to the validity of retroactive legislation, so far as it may affect only expectant or contingent interests, we think the law is well settled that the power thus to deal with such interests resides in the Legislature. Justice Wood-bury stated the rule with great clearness, and what he said has been accepted by the courts and law-writers as an authoritative utterance and as declaring the true doctrine upon the subject. Laws enacted for the betterment of judicial procedure and the unfettering of estates so as to bring them into market for sale, cannot be regarded as opposed to fundamental maxims, “unless (as he says) they impair rights which are vested; because most civil rights are derived from public laws; and if, before the rights become vested in particular individuals, the. convenience of the State necessitates amendments or repeals of such laws, those individuals have no cause of complaint. The power that authorizes or proposes to give, may always revoke before an interest is perfected in the donee.” Merrill v. Sherburne, 1 N. H., 213; Cooley (7 Ed.), p. 511. Chancellor Kent, in speaking of
So long as the interest remains contingent only, the Legislature may act, for a bare expectancy or any estate depending for its existence on the happening of an uncertain event is within its control, not being a vested right which is protected by constitutional guaranties. If this be so, the nature of estates and their enjoyment must, to a certain extent, and indirectly, be subject to legislative control and modification in order to promote the public welfare. Smith on. Statutory and Const. Oonstr., 412. In this country, estates in tail have very generally been turned into estates in fee-simple by statutes the validity of which is not disputed. De Mill v. Lockwood, 3 Blatchford, 56; Lane v. Davis, 2 N. C., 277; Minge v. Gilmour, ibid., 279. Such statutes operate to increase and render more valuable the interest which the tenant in tail possesses, and are not, therefore, open to objection from him, and as no other person in these cases has any vested right, either in possession or expectancy, to be affected by such a change, the expectation of the heir presumptive, which is at best but a contingent interest, must be subject to the same control as in other cases. Cooley (7 Ed.), 512. It has also been held that the Legislature has the power by
Numerous cases can be cited in which such power has been held to belong to the Legislature, where the interest to be affected is only contingent, or at least not vested. Kearney v. Taylor, 15 How., 494; Randall v. Krieger, 23 Wall., 137; 6 Am. and Eng. Enc. (2 Ed.), 957, where the authorities are collected. An illustration of the application of this settled principle is to be found in the decisions of this Court, in which statutes validating certain judicial acts and proceedings have been upheld. Howerton v. Sexton, 90 N. C., 581; Carter v. Rountree, 109 N. C., 29; Bass v. Navigation Co., 111 N. C., 439; Barrett v. Barrett, 120 N. C., 127. See, siso,. Bank v. Bank, 22 Wall., 276. But it seems useless to pursue this line of thought any further, in view of the recent decision in Springs v. Scott, 132 N. C., 548, where Mr. Justice Connor, speaking for the Court in a learned and exhaustive discussion of a similar question, as to the validity of the Act of 1903, ch. 99 (Rev., sec. 1590), in respect to its retrospective operation upon the will considered in that case and the estates that are created thereby, demonstrates by reason and authority that the act is valid, even when allowed to reach back and affect estates already created by will, so far, though, only as it is permitted to apply to interests not yet vested. If the Act of 1903 can be thus sustained, we do not see why judicial proceedings, conducted in substantial conformity to its requirements, may not with equal reason be validated by the Act of 1905. The cases are to be distinguished from those where the power has been denied, by the fact that the estates to be affected have not yet become vested so as to be brought under the protection of the Constitution,
If the judicial act of taking the probate of a deed which renders the latter void as to a married woman because of a defect in the privy examination, can be made valid by subsequent legislation, it would seem that a proceeding to sell land for the purpose of reinvestment, which the Court finds will inure to the benefit of all parties interested, should be subject to legislative action in order to correct errors of procedure, especially when vested rights are not impaired. A closer analogy may be found in those statutes which have been passed to validate judicial proceedings for the sale of land, in which infants who were interested parties had not been personally served with process, though their interests were represented by a guardian ad litem. In those cases, notwithstanding the law required personal service both upon the infant and the guardian ad litem, this Court held such statutes to be a valid exercise of the legislative power. Those cases and this one have this feature in common, that the doctrine of virtual representation applies to each, but the reason in favor of a proceeding like the one we have under consideration is stronger than in the other case, as in the former the only interest which can be affected has not vested and is not likely to vest, while in the latter the infants'had vested interests which might be prejudiced by upholding the legislation. When we refer to the principle of “virtual representation” we do not mean to imply that the proceeding to sell
There was no error-in the opinion and judgment of the Court.
Affirmed.