98 S.E. 459 | N.C. | 1919
Plaintiff, under a decree of the court, in a cause, duly constituted, of Laura A. Miller, et al. v. Julia B. Faulkner et al., and as (160) commissioner in the cause, having contracted to sell the land, the subject-matter of said suit, to defendant, D. E. Wood, at the price of $33,000, and the payment of certain assessments for paving, etc., which said sale was fully approved, etc., the said purchaser, on demand made, declines to take the property or comply with the terms of the bargain, claiming that the commissioner is not in a position to make a valid title.
On the case presented, the court, being of opinion that the title offered was a good one, entered judgment for recovery of purchase price and the delivery of the deed on payment of same or compliance with the terms of the decree. From this judgment the defendant appealed. From the facts, properly presented, it appears that the real estate in question belonged to one Richard F. Green, who has died, making disposition of the same by his last will and testament, as follows:
"Item IV. I give and bequeath to my wife, Eliza B. Green, my house and lot in the town of Kinston, N.C. in which I now reside, to go with all my household and kitchen furniture and all other improvements thereto belonging, to have and to hold during her natural life, and at her death to go to my daughter, Laura A. Green, to have and to hold during her natural life, and at her death to her nearest blood relative."
2. That the wife, Eliza B. Green, is dead, and Laura A. Miller, having married, is the Laura A. Green referred to in the aforesaid devise, and that Julia B. Faulkner and Laura A. Harding were, at the time of the proceedings instituted under which the present sale was had, and are now, the nearest kin of said Laura A. Miller, and the former has six children now living, one of whom is a minor, and the latter also has now living children and grandchildren, resident and nonresident, and most of whom are minors.
3. That the present life tenant, Laura A. Miller, in May, 1918, instituted an action to sell said property for reinvestment, under section 1590 of the Revisal, making the present nearest blood relatives, Julia B. Faulkner and Laura A. Harding, parties defendant, and in same proceedings it was made to appear, by averment and otherwise, that this was a desirable, valuable lot in the business section of Kinston, N.C. subject to the taxes and assessments usually imposed on such property; "that the lot yields very little income and is burdensome; that the buildings situated upon it are very old, have become in a bad and dilapidated condition, which are yearly growing worse, to the end that the said structures will soon be valueless, and are in fact at this time in a damaging condition, and the income yielded by the said property does not exceed $200 per year; that on account of (161) the condition of the title to the said lot of land, as above set forth, no one feels justified in improving the structures situated upon said land, which consists only of a dwelling-house and a small outhouse, nor do they feel justified in placing new buildings upon the said lot of land, to the end that the revenue from the said lot may be increased, for the reason that if any one should make expenditures in the improvement of the said lot, it might, by reason of the condition of the said title, result in a loss to them of any amount which they might expand"; and praying for a sale of same for reinvestment, provided as much as $30,000 could be obtained therefor, with a cash payment thereon of $5,000. *170
The next of kin, having accepted service, did not answer the averments of the petition showing the necessity of sale, and made no resistance to the application. It was thereupon adjudged that J. G. Dawson, as commissioner in the cause, make inquiry as to the value and obtain and submit bids for the property considered adequate and desirable. And it was furthermore adjudged, after due inquiry, that Y. T. Ormond be and he was appointed guardian ad litem in said action "to represent in same, as contemplated by law, any persons under disabilities and any person not now in being or whose names and residences are not known, or who may in any contingency become interested in said land"; and, summons having been duly issued, said guardian voluntarily appeared in the cause, waiving service, etc., and accepting appointment as such guardian; that at the January Term, 1919, of Superior Court of Lenoir County, the said commissioner made his report, submitting that, after full advertisement and due inquiry, the present defendant, D. E. Wood, had bid for the property $33,000, of which $15,000 was to be paid in cash and the remainder with bond, payable on or before 10 years, with interest, and properly secured. The bid and security offered was set forth in the report, and the said bidder also agreed to pay eight-tenths of the amounts now due for paving assessments against the property, aggregating $750.65. The commissioner further reported that the price offered was the reasonable worth of the land; that it was the best price possible to obtain for it, and that the interest of all the parties would be materially enhanced by a sale at the amount stated, and recommended that the sale be made on the terms proposed. And the guardianad litem, appointed after due inquiry, answered under oath and admitted that the price offered was fair and reasonable worth of the property; "that the interest of all the parties on said proceedings required that the land should be sold, and same would be greatly enhanced in value by the sale D. E. Wood at the price and on the terms stipulated."
It was further made to appear that heretofore, in 1913, this present plaintiff had instituted an action against the defendants, Julia (162) B. Faulkner and Laura A. Harding, then and now the nearest of kin, seeking a sale of this property on allegation that she was absolute owner in fee under the terms of her father's will, and, if otherwise, asking for a sale for reinvestment under the statute. In that case, entitled Miller v. Harding, reported in
In this jurisdiction, and on the facts thus presented, the courts have not had the inherent power to decree a sale of property and pass a valid title to the purchaser, the remainder here being limited on a *171
contingency that would prevent the ascertainment of the ultimate takers, or any of them, till the death of the life tenant. Hodges v. Lipscombe,
In Laws of 1905, ch. 548, this reinvestment in realty was required to be within two years, but such requirement was removed by the later Acts of 1907, chs. 956 and 980, leaving the matter of reinvestment somewhat in the discretion of the court, but with clear intimation that the fund should be reinvested in realty when an advantageous opportunity should be offered. *172
Construing the statute as amended in the carefully considered case ofHodges v. Lipscombe,
In Springs v. Scott and Smith v. Miller, supra, the constitutionality of the statute was directly and fully considered, and in Pendleton v.Williams, speaking to this and other features of the act, the Court said: "It is very generally recognized that statutes of this kind, being no interference with the essential rights of ownership, but operating rather in addition to those already possessed by the owners of such estates, are well within the legislative powers (citing Lawson's Rights and Remedies, sec. 3867), and the act we are presently considering has been repeatedly approved and applied by decisions of this Court, the law being construed to authorize a sale of the property or the portion of it affected by the contingent interest, and not a sale of the contingent interest separately, citing Smith v. Witter,
Under these authoritative interpretations, and on perusal of the record in which this decree of sale was had, it will appear that the petitioner's case comes clearly within the statutory provisions, the methods required have been carefully pursued, the interest of the contingent remaindermen properly safeguarded, an advantageous sale has been affected, and we must concur in the view of his Honor below that the present *173 plaintiff, as commissioner, is in a position to offer a good title, and the contract of the purchaser must be complied with.
This being virtually an independent action by the commissioner to collect the purchase money, there is doubt if any of the objections urged against the validity of the sale are available to defendant while the decree in the principal suit remains unchallenged, either by appeal or motion in the cause.
There seems to be nothing jurisdictional in these objections; but if the contrary be conceded, we are of opinion that none of them can be sustained.
It was chiefly urged that the petitioner in the principal proceedings is barred of his right to a sale for reinvestment, by reason of a judgment denying such right in a former suit instituted by her for the same purpose in 1913 and reported in
It is undoubtedly the accepted principle here and elsewhere that an adversary judgment will usually conclude the parties as to all matters involved in the issue as stated and defined in the pleadings. Hollowayv. Dunham,
Again, it is objected that the decree in the principal case provides that the interest on the fund shall be paid, one-half to the life tenant and one-fourth each to the contingent remaindermen made parties under the statute. This might be a good ground of exception if it were made by the life tenant, but if she has seen proper to consent to such a disposition of the income, this assuredly is no concern of the purchaser, nor could it in any way affect the question of the title that is offered him. In the recent case of Pendleton v. Williams, supra, which is an authority apposite to several of the questions presented in this appeal, the Court, in response to a similar objection, said: "So far as the purchaser is concerned, the statute having given the power of sale, and all the parties in interest being before the court, there is no reason why a good title cannot be conveyed to him, and he is no way charged with the duty of seeing that the purchase money is properly distributed. When a purchaser has paid his bid into court or to its officers duly authorized (166) to receive it, he is quit of all further obligation concerning it, and, as to him, the judgment must be affirmed," citing Wilkersonv. Brinn,
On the record, we are of opinion that the judgment directing the collection of the purchase money, according to the terms of sale, should be affirmed, and, on final judgment, proper provision be made for securing *175 the fund according to the provisions of law and the course and practice of the court.
Affirmed.
Cited: McLean v. Caldwell,
