53 S.E. 728 | N.C. | 1906
Edmund Coor on 3 May, 1870, executed to E. R. Cox, trustee, and his heirs a deed conveying the land in controversy "to the sole and separate use of Amanda M. Cameron, wife of John Cameron, during her life, and after her death to convey the same to such children and their heirs as she, the said Amanda, may leave her surviving, and to the issue and their heirs of such as may be dead, such issue to represent their ancestors and take such part as he or she would have taken if living, and if during the life of the said Amanda she should desire any or all of the said property conveyed in fee or otherwise, to convey the same according to her wishes, she joining in said conveyance as if she were a feme sole, though her husband be living." Said deed was duly recorded in the office of the register of deeds of Wayne County. The said E. R. Cox, trustee, died 18 June, 1875, leaving surviving certain children and grandchildren, all of whom were either infants or married women, and so remained to the beginning of this action, 11 August, 1902, except one daughter, Florence Virginia Cox, who became 21 years of age 24 October, 1880, and was married to T. J. Newsome 9 December, 1880. On 28 October, 1880, John Cameron and his wife, Amanda Cameron, executed a deed for the land in controversy to the defendant E. F. Hicks, sufficient in form to convey said lands in (23) fee simple with full covenants of warranty. There was evidence tending to show that the said Hicks went into possession of said land, described in said deed, immediately after its execution, and that he and the other defendants claiming under him have remained in possession until the beginning of this action. The deed from Cameron and wife to Hicks recited a consideration of $600. John Cameron died June, 1881. His widow, Amanda, died March, 1901, leaving surviving six children, all of whom, with the exception of A. F. Cameron and J. D. Cameron, the last of whom died since the beginning of this action, are parties *48 plaintiff herein, together with the children of J. D. Cameron. That all the living children and the children of such as are dead of E. R. Cox, trustee, are parties defendant herein, together with the grantees of E. F. Hicks, to whom portions of the said lands were conveyed as aforesaid. The court charged the jury that if they believed the evidence, they should answer the issues for the plaintiffs, to wit: "That they were each entitled to one-sixth undivided interest of the land in controversy." Defendants excepted and assigned the said instruction as error. From a judgment upon the verdict, defendants appealed. The record, with the exhaustive and well-considered briefs in this appeal, clearly present the questions upon which the rights of the parties depend.
The plaintiffs suggest that it is not necessary for them to combat the principle decided in Kirby v. Boyette,
Light is thrown upon the language of Pearson, C. J., in Swann v.Myers, by referring to his dissenting opinion in Harris v. Harris,
There is another view of this case which we think conclusive upon the power of Mrs. Cameron to convey any interest in the land. After declaring the trusts, the grantor directs the trustee, "if during the life of the said Amanda she should desire any or all of said property conveyed in fee or otherwise, to convey the same according to her wishes, she joining in said conveyance as if she were a feme sole, though her husband may be living." In Swann v. Myers, supra, the will gave to the trustees the power and directed them "in the soundness of their discretion" to "join with thecestuis que trust in making any conveyance of the above property." JudgePearson writing for the Court, construed this language to be a restraint upon the power of alienation as to the fee. This ruling, so far as it refers to the fee, is in harmony with all of our decisions and those of other States, which hold that when a mode of alienation is prescribed in the instrument, it must be followed. Hardy v. Holly and Norris v. Luther,supra; Towles v. Fisher,
It will be observed that in our case the mode is expressly prescribed, and applies to conveyances "in fee or otherwise." We therefore do not depart from the principle announced in Swann v. Myers, in that respect, in holding that there is to be found in the deed of settlement an express mode prescribed for disposing of either the life estate or the fee. That such was the intention of the maker of the deed is, we think, seen in the *52
fact that the husband is not required to join in the conveyance, but the wife is to act in that respect as if she were "a feme sole, though her husband may be living." It was the manifest purpose of Mr. (29) Coor to remove Mrs. Cameron, in respect to the sale of this property, from both the influence and protection of her husband, and vest in the trustee the sole power to convey "in fee or otherwise, according to her wishes, she joining in said conveyance." To permit her and her husband to convey the land thus secured to her, without the intervention of the trustee, would be doing violence to the express language and manifest intention of the maker of the deed of settlement. If the land had been conveyed directly to Mrs. Cameron, the Constitution imposed upon her power of alienation the necessity for the assent of her husband. The deed under which she acquires her equitable estate — the right to the sole and separate use of the land — substitutes the trustee for the husband in respect to the conveyance. Pippen v.Wesson,
It is well settled that upon the death of the trustee the legal title descended to his heirs, with the trust impressed upon it. Clayton v.Rose, supra; Perry on Trusts, 341. It seems equally well settled that if the trustee, being clothed with a power, as in this case, of conveying the legal title by direction and appointment of the cestui que trust, dies before its execution, the power is gone and cannot be executed. Sugden on Powers, 319. In Barber v. Cary,
The suggestion that because the heirs of Mr. Cox were infants, the legal estate did not descend to them charged with the trusts, is met by what is said in Clayton v. Rose, supra: "After the death of the original trustee, and when the legal estate had descended, clothed with the trust, to his infant children," etc. It is suggested that upon the death of Mr. Cameron the statute of uses operated by "Legal Chemistry" or "Parliamentary Magic," to execute the use and unite the legal and equitable estates in Mrs. Cameron for life, leaving to the trustee or his heirs the remainder in fee for the purpose of preserving the contingent remainders, and conveying to those who might be entitled upon Mrs. Cameron's death. It is well settled that when there is a conveyance to trustees for the sole and separate use of a married woman and her heirs, and she becomes discovert, the necessity for preserving the separate estate being at an end, the statute executes the use and she becomes the absolute owner. Monroe v. Trenholm, supra; Stacy v. Rice, 27 Pa. St., 75; Perry on Trusts, 653. It is equally true that where an estate is conveyed to trustees to preserve contingent remainders, the statute will not execute the use. The legal title must remain in the trustee, because as in this record, no one in existence could call for the legal title. It was uncertain who would be entitled upon the death of Mrs. Cameron, and this uncertainty continued until the moment of her death. Latham v. Lumber Co.,
The deed executed by Mrs. Cameron and her husband to Hicks was therefore a nullity, conveyed no estate, either legal or equitable. Hicks' entrance upon the land was therefore an ouster of the trustee and put the statute of limitations in operation. At the expiration of the statutory period his possession would have ripened into a perfect title, both as against Cox, if living, and his cestui que trust and her infant children. This rule of law is too well established and has been too often enforced with its variant results to be now called into question. Smith, C. J., in *54 Clayton v. Rose, supra, in applying the principle, where it was sought to bar the cestuis que trust, said: "Nor do we think the defendants can protect themselves under a seven years adverse possession with color of title. It is conceded that when the right of entry is barred and the right of action lost by the trustee, or person holding the legal estate, through an adverse occupation, the cestui que trust is also concluded from asserting claim to the land. And the correlative must be accepted, that (32) when the trustee is not barred, neither can the cestui que trust be, since as against strangers they are identified in interest. The alleged hostile possession by the defendants began after the death of the original trustee, and when the legal estate had descended clothed with the trust to his infant children, and this disability prevents the statute from starting to their prejudice." In some cases it operates to destroy and in others to preserve titles. Courts may not shrink from enforcing it, and thereby introduce confusion, on account of hard cases.Kirkman v. Holland,
Ruffin, J., in Scott v. Battle, supra, speaking of the deed of a married woman without compliance with the provisions of the statute, says: "It prescribes the terms, and without their strict observance the act stands as it would at common law — absolutely null and void." InGreen v. Branton,
We are thus brought to a consideration of the last question presented by the exceptions: Are the trustees, heirs at law of Cox, barred of their right of entry? At the date of Hicks' entry, 28 October, 1880, they were all, except Florence, under disability, and have so continued until the date of summons, 11 August, 1902. Florence reached here majority 24 October, 1880, and married 9 December, 1880. Hence, for (34) one month and eleven days she was under no disability. The statute ran against her, and it is elementary learning that when the statute begins to run so subsequent disability interferes with it. Hicks and those under him have, therefore, been in the adverse possession twenty-one years and a few months and prior to the beginning of this action. If the heirs of Cox, trustee, held the legal estate as tenants in common, they would recover in respect to their separate interests. The defendants insist that they held as joint tenants, and not as tenants in common. This is not controverted by plaintiff and seems to be sustained by the authorities. "Trust property is generally limited to trustees as joint tenants.
. . . Therefore, upon the death of one of the original trustees, the whole estate, whether real or personal, devolves upon the survivors, and so on to the last survivor. If he has made no disposition of the estate by will or otherwise, it devolves upon his heirs, if real estate, and upon *56
his executors or administrators, if it is personal estate." Perry on Trusts, 343; 17 A. E. (2 Ed.), 650; Revisal, sec. 1580. It seems to be well settled that joint tenants must sue jointly, differing in that respect from tenants in common. Mr. Freeman says: "Whenever the title of the cotenants, as in the case of joint tenancy and coparcenary, is joint, the action must also be joint, and whenever, as in tenancy in common, such tenant is deemed to possess a separate and distinct estate, the remedy of each must be separately and distinctly pursued. Joint tenants being seized per my et per tout and deriving but one and the same title, must jointly implead and be impleaded. If twenty joint tenants be, and they be disseized, they shall have, in all their names, but one assize, because they have but one joint title." Contenancy, 329. To the same effect is Sedgwick and Wait Trials, etc., sec. 302. It was at one time held in this State that two tenants in common could not join in one demise, because there was no unity of title — one might recover and the other fail. It was afterwards held, for the (35) reason set out by Ruffin, J., in Hoyle v. Stowe,
The law was so ruled in Perry v. Jackson, 4 Term, 516. It is true that the contrary doctrine is laid down in 19 A E. (2 Ed.), 182. It will be found that the North Carolina cases cited do not sustain the text as construed by plaintiff's counsel. In Caldwell v. Black,
We have given to this subject a most careful consideration, examining the authorities and decided cases from other courts. They are not uniform. In several States it is held that where there is a joint action by tenants in common, if one is barred, the action fails as to all. The true rule would seem to be that, except where the necessity for all parties in interest to join "is founded upon the nature of the interest in the particular property," the plaintiffs recover in accordance with their rights as developed upon the trial; in other cases they must all show a right to recover when the action is brought. Statutes have been enacted *58 in many of the States, permitting any one or more joint tenants and tenants in common to sue. Pomeroy Code, Rem., 137, note; 11 Am. and Eng. Enc. Pl. and Pr., 771. The possession of Hicks and those defendants claiming under him has continued for more than twenty-one years, during all of which time the statute has been in operation against Florence Cox, now Mrs. Newsome. She is clearly barred, and the conclusion must follow that her cotrustees are also barred.
We think the statute well pleaded. The claim of both plaintiffs and defendants is based upon what may be termed "technical rules of the law." If we should adopt the plaintiffs' contention that in respect to this property Mrs. Cameron should be treated as a feme sole, there would seem to be no very good reason why we should not find in her deed to Hicks a clear intention to execute the power conferred upon her to convey in a fee, and aid its defective execution by adjudging the holders of the legal title trustees for the benefit of the defendants, who appear to be purchasers for value. The plaintiffs were objects of Mr. Coor's bounty, contingent upon Mrs. Cameron's failure to exercise the power of appointment. There is much force in the facts shown by the defendants to sustain an equitable estoppel upon the plaintiffs. (38) The case is frought with perplexities. Many of the principles of the common law regarding titles to real property are difficult to sustain upon the "reason of the thing." We find wisdom in the language of Earle, J., in Bertles v. Nunan,
When men undertake to place their property out of the usual and fixed channels of alienation and descent, it frequently happens that their best considered plans fail to be accomplished, or, if accomplished, bring about the results not anticipated. There has been no more prolific source of litigation, with difficult questions to be solved, than the creation of trusts for the benefit of married women, and attempting to control the passing of the property into the possession of posterity. To the end that the rights of the parties may be adjudged upon the principles herein laid down, there must be a
New trial. *59
Cited: Smith v. Moore,
(39)