Frоm the facts, properly presented, it appears that the real estate in question belonged to one Richard E. 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 othеr 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 thаt 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 of 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 Laurá 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 businеss 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 faсt at this time in a damaging *161 condition, and tbe income yielded by tbe said property does not exceed $200 per year; tbat on account of tbe condition of tbe title to tbe said lot of land, as above set forth, no one feels justified in improving tbe structures situated upon said land, wbicb consists only of a dwelling-bouse and a small out-bouse, nоr do tbey feel justified in placing new buildings upon tbe said lot of land, to tbe end tbat tbe revenue from tbe said lot may be increased, for tbe reason tbat if any one should make expenditures in tbe improvement of tbe said lot, it might, by reason of tbe condition of tbe said title, result in a loss to them of any amount which tbey might expend”; 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.
Tbe next of kin, having accepted service, did not answer tbe averments of tbe petition showing tbe necessity of sale, and made no resistance to tbe application. It was thereupon adjudged tbat J. G. Dаwson, as commissioner in tbe cause, make inquiry as to tbe value and obtain and submit, bids for tbe property considered adequate and desirable. And it wus furthermore adjudged, after due inquiry, tbat T. T. Ormond be and be 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 tbe causej! waiving service, etc., and accepting appointment as such guardian; tbat at tbe January Term, 1919, of Superior Court of Lenoir Cоunty, tbe said commissioner made bis report, submitting tbat, after full advertisement and due inquiry, tbe present defendant, D. E. "Wood, bad bid for tbe property $33,000, of wbicb $15,000 was to be paid in cash and tbe remainder with bond, payable on or before 10 years, with interest, and properly secured. Tbe bid and security offered was set forth in tbe report, and tbe said bidder аlso agreed to pay eight-tenths of tbe amounts now due for paving assessments against tbe property, aggregating $750.65. Tbe commissioner further reported tbat tbe price offered was tbe reasonable worth of tbe land; tbat it was tbe best price possible to obtain for it, and tbat tbe interest of all tbe parties would be materially еnhanced by a sale at tbe amount stated, and recommended tbat tbe sale be made on tbe terms proposed. And tbe guardian ad litem, appointed after due inquiry, answered under oath and admitted tbat tbe price offered was fair and reasonable worth of tbe property; “tbat tbe interest of all tbe parties on said prоceedings required tbat tbe land should be sold, and same would be greatly enhanced in- value by tbe sale to D. E. Wood at tbe price and on tbe terms stipulated.”
It was further made to appear tbat heretofore, in 1913, this present
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plaintiff bad instituted an action against the defendants, Julia B. Faulkner and laura A. Harding, tben 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 contingency that would prevent the ascertainment of the ultimate takers, or any of them, till the death of the life tenant.
Hodges v. Lipscombs,
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.
Construing the statute as amended in the carefully considered case of
Hodges 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 interferеnce 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 Cоurt, 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,
*164
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 thát the рetitioner’s-case comes clearly within the statutory provisions, the methods required have been carefully pursued, the interest of the contingent remainder-men properly safeguarded, an advantageous sale has been affected, and we must concur in the view of his Honor below that the present plaintiff, as commissionеr, 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.
Holloway v. Dunham,
Again, it is objected that the dеcree 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 а 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 np 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
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paid his bid into court or to its officers duly authorized to receive it, he is quit of all further obligation concerning it, and, as to him, the judgment must be affirmed,” citing
Wilkerson v. 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 the fund according to the provisions of law and the course and practice of the court.
Affirmed.