Miller v. . Alexander

May 17, 1898
Versions:122 N.C. 718
30 S.E. 125
1898 N.C. LEXIS 334
Faircloth, C. J.:

James M. Smith devised lands to his daughter Elizabeth A., wife of J. H. Gudger “to her sole and separate use and benefit for and during her natural life, with remainder to such children as she may leave her surviving and those representing the interest of auy that may die leaving children.” The plaintiffs are the remaindermen. — -consisting of the offspring of Gudger’s marriage and some others who are minors. These parties filed a petition to sell said land for partition about 1883, and on appeal this Court held that the lands could not be sold during the time of the life estate, as that was the earliest time when those in remainder could be ascertained. Miller ex parte, 90 N. C. 625. By a private Act of 1897 ch. 152 on petition of plaintiffs, in order c ‘ to disentangle and unfetter the condition of the title” the Legislature designated C. H. Miller a commissioner of the Assembly and authorized *720 him to survey and divide said lands into lots according to his judgment and to sell the same with the approval of the adult petitioners, and make title to the purchaser in conjunction with those of full age. It was also directed that he hold the proceeds as a trust fund to be reinvested as fast as is expedient for the purposes intended by the will. The Act requires that Miller report his sale to the clerk, and the only thing the clerk is required to do is to demand a bond from the commissioner to secure the purchase money. The sales made by Miller are not required to be approved by the clerk, the court or the Legislature. He proceeds on his own judgment.

The real question presented in the case is this: Is the Act constitutional? Article I. Section 8 is in these words: ‘ ‘ The legislative, executive and supreme judicial powers of the government ought to be forever separate and distinct from each other.” In petitions for a judicial sale of lands the court hears the allegations and requires proof, and passes upon the sufficiency of the proof and determines upon such proof and the surrounding circumstances the propriety of ordering the sale. This is manifestly a judicial duty. The Legislature in the case before us assumed to pass upon and determine these questions 'on an ex parte application, and authorizes a sale upon a state of facts which this Court had held could not be' done because of the contingency as to who would be the owners when the life estate determined. In this way the Legislature undertook to exercise judicial power, and in doing so crossed the line between 'the legislative and judicial branches, marked out by the Constitution. In Robinson v. Barfield, 6 N. C., 391 (932) a deed was acknowledged by a feme covert and. ordered to be registered, there being no private examination. An Act of Assembly subsequently passed *721 .declared that such deeds not executed according to law ‘ ‘shall be held, deemed and taken to be firm and effectual in law.” The court held that the Act was unconstitutional and in violation of Article I. Sec. 8. Hoke v. Henderson, 14 N. C., 1. We hold this, except as to titles acquired subsequent to the validating statute. Barrett v. Barrett, 120 N. C., 127.

• It has been suggested that a general Act of this kind, i: e., not for a special case, would present a stronger cáse for the petitioners. We express no opinion on that view at present. The case of Henderson v. Dowd, 116 N. C., 795 has no bearing on this question.

Reversed.