117 Va. 289 | Va. | 1915
delivered the opinion of the court.
The appellant, Curtis, filed his bill in the Circuit Court of Warwick county, in which he shows that Mrs. Virginia R. Chewning, in her life time, was seized in fee of certain tracts of land, containing by estimate 215 acres; that she had been twice married, and by her second husband, who survived her, she had one child, which is still living; that by her will she devised the land to the children of her first marriage, subject to the life estate by curtesy of. her surviving husband, H. M. Chewning; that the complainant, Curtis, by deed dated June 2, 1902, bought of Chewning his life estate in said tracts of land, and has been and now is in possession of them; that by deed dated July 1, 1910, the devisees under the will of Virginia R. Chewning conveyed their interest in remainder to R. E. Richardson and P. W. Hiden; that Chewning, whose grantee is entitled to the possession and usufruct of the land during his lifetime, is now fifty-five years old, and his expectancy is, therefore, seventeen years; that all the land of which he is life tenant, except about fifteen acres, is grown up in timber, mostly old field pines, ranging from saplings to trees of from 12 to 20 inches in diameter; that this timber constitutes the chief value of the land; that the timber is peculiarly valuable for piling and is now of proper size and ready to be cut as such; that it will depreciate in value if allowed to stand and grow during the expectancy of Chewning, when it will be above the proper size for piling; that the smaller trees retard the growth of the timber where they are too thick and should be thinned out and those cut down sold for cord wood; that the growing timber needs scientific cultivation and modem methods of forestry applied to it, which can best be done by one owning the fee simple estate in possession; that piling of the character of that growing upon these lands is now in great demand along the seaboard, and
To this bill the defendants, Hiden and Richardson, filed their demurrer, which the circuit court sustained and dismissed the bill, and the case is before us upon an appeal awarded by one of the judges of this court.
We shall not consider the power of the courts to sell lands held by joint tenants, tenants in common, or co-parceners, for the purpose of partition, where partition in kind cannot be had, nor the power of courts to sell lands held in trust, nor of the State, as parens patriae, to authorize the sale of contingent remainders. We shall confine ourselves to the precise question presented by the bill of a plaintiff owning a life estate coming into court and asking the sale of the estate held in .remainder, where neither plaintiff nor defendants are under any disability whatsoever, where there is no obscurity or difficulty as to the title, but a naked case of an absolute legal title to the life estate in the plaintiff, and a vested remainder in fee in the defendants who are sui juris and are opposed to the sale.
There are but two grounds assigned in the bill for invoking the jurisdiction of a court of equity. The first is that the plaintiff, who is a voluntary purchaser from the tenant by curtesy of the life estate, which he now holds, has found the investment unprofitable. He bought with his eyes open. The property is today, or was at the date of filing the bill, in the same condition in which he purchased it. The fact that he has made a bad bargain constitutes no ground for the interposition of a court of equity.
The contention of the plaintiff that the timber on the land should be cut and sold as piling or cord wood, and that scientific cultivation of the timber would inure to the interest of the defendants, is without merit, for the plaintiff has no interest in the standing timber and cannot use or enjoy it
There is nothing in the bill, therefore, to call into exercise any of the equitable sources of jurisdiction to sell land and the right of the appellant, if it exists, must depend solely upon section 2436-a of Pollard’s Code, which provides that “when real estate is held by a party as tenant by the curtesy, or in dower, whether the remainder be vested or contingent, and whether the remaindermen be infants or adults, it shall be lawful for the circuit and corporation courts, or such court having jurisdiction of the subject-matter, upon a bill filed by the party holding such estate by curtesy or in dower, in which bill all persons directly or contingently interested shall be made defendants, to decree a sale of such real estate, or any part thereof, and to invest the proceeds of sale under the decree of the court for the use and benefit of the party so holding the estate, subject to the rights of the remaindermen: provided, however, that the bill of the plaintiff shall set forth the facts which, in his or her opinion, would justify the sale of the said real estate, and shall be verified by the affidavit of the party, and provided the court shall be of opinion that the interests of all parties will be promoted by such sale, and shall so certify in the decree.”
This question has never been before this court, but has been passed on by the courts of other States.
In Gossom v. McFerran, 79 Ky. 236, it was held that section 491 of the Civil Code, in so far as it authorized the sale of real estate upon the petition of the life tenant, in opposition to the wishes of the owner of the fee, where the
That case is identical in principle with the one before us. There is no joint ownership in this case; there is no community of interest whatever. The appellant is the absolute, owner of the life estate; the appellees are the absolute owners of the remainder. None of them are under disability, and the life tenant may sell his interest whenever he sees fit, provided he can find a purchaser.
In Lantz v. Massie, 7 Va. Law. Reg., at p. 544, Prof. Lile, of the University of Virginia, has an instructive note, which deals with the power of the legislature to authorize the courts, at the suit of a life tenant, to sell vested remainders in real or personal estate, whether the remaindermen be infants or adults. The case of Gossom v. McFerran, supra, is reviewed by him, along with other authorities, and he considers “the reasoning of this case is conclusive of the iniquity of the act, so far as it authorizes the sale of vested remainders, where the vested remaindermen are adults and of sound mind.”
In Powers v. Bergen, 6 N. Y. 366, it is held that the legislature, except in cases of necessity, arising from -infancy, insanity or other incompetency, of those in whose behalf it acts, has no power to. authorize by special act the sale of
In 3 Washburn on Real Property (2nd ed.), sec. 5, s. p. 539, it is said: “In attempting to define the cases in which a legislature may, by special act, change the ownership of land, or authorize one man to transfer the interest of another in lands, there are certain principles which may be regarded as elemental, which will serve as tests to be applied to the questions as they arise, and in the first place, the power to do this does not depend upon its being by general law or special act. In the first place, where the act is based upon the assumption or exercise of judicial power, it is void, since legislatures are prohibited from the exercise of such powers. In the next place, a legislative act cannot authorize the property of a citizen to be taken from him, through the instrumentality of a sale, or otherwise, so long as he is under no legal disability to manage his own affairs, where the effect is not to convert it to the use of the government, but to transfer it from the original owner to a third person.”
In Ervine’s Appeal, 4 Harris (16 Pa.) 256, 55 Am. Dec. 499, the case was as follows: The testator directed that after the decease of his wife, his executors should rent out his lands, and out of the. proceeds his son Daniel should be supported ; that none of- his real estate should be sold during the life of his son, but that he be supported out of the same; and further provided that after the death of his son, Daniel, then
In Kneass’ Appeal, 31 Pa. 87, it was held, that an act of assembly authorizing executors to sell the real estate of one not sui juris, and to invest the proceeds upon the trusts declared in the will of the testator, on giving security for the faithful application of the fund, is a constitutional exercise of legislative power; and a purchaser will be compelled to take a title under such an act. But the legislature have no power to authorize the sale of the property of par
In Hegarty’s Appeal, 75 Pa. 503, it is held, that the legislature cannot, against the consent of parties sui juris, seized of a vested estate, authorize the sale of their real estate. See Gilpin and wife v. Williams et al., 25 Ohio St. 283.
Upon the whole case, we are of opinion that if the statute is to be construed as conferring a right upon the life tenant by curtesy, or in dower, to demand and require a sale of the real estate in which he or she is interested where all the parties are sui juris and the estate is vested, then the statute is unconstitutional as an unwarrantable interference with rights of property and as denying the equal protection of the laws; that if the statute is to be regarded as merely conferring the power upon the courts to order a sale where the facts set forth “would justify the sale of real estate,” to follow the language of the statute, then the bill before us, in our judgment, makes no such case and sets forth no facts which would justify the court in ordering the sale; and, therefore, in either aspect, the judgment of the circuit court sustaining the demurrer to the bill was right and should be affirmed.
Affirmed.