132 N.C. 548 | N.C. | 1903
This is a special proceeding instituted in the Superior Court of Mecklenburg County for the purpose of obtaining an order for the sale of the land described in the petition for partition. The plaintiff and the feme defendant are the children and devisees of Julia Springs, deceased— the plaintiff, E. B. Springs, appearing in his own behalf and as trustee of Alva 0. Springs. The petitioners aver that- they together with the feme defendant are seized as tenants in common of a lot in the city of Charlotte under the provisions of Item 5 of the will of their mother, the late Julia B. Springs, which is in the following language: “I give and bequeath unto my son Alva C. Springs one hundred dollars. I also wish his expenses paid here and back to his home when
“1. That it appearing from the plaintiffs complaint and particularly from the will of said Julia B. Springs that the interest therein devised to Alva C. Springs i.s for his-life only, and that after the death of Alva C. Springs there is a limitation over to his children until they are of age, and if no children or heirs.of his body, to his brothers and sisters or their heirs, and it can not now be known who the heirs are who will be entitled to take upon the dfeath of said Alva C. Springs.
2. That the heirs of said Alva C. Springs are not-made parties to this action and that the said heirs are necessary parties.
3. That this court has no jurisdiction to order a sale of the land described in the complaint.”
The court overruled the demurrer and directed a sale of the land. The defendant appealed to the judge who affirmed the judgment of the clerk and directed that the cause be retained for further hearing upon the coming in of the report From this judgment the defendants appealed to this court.
The only question therefore is whether, in the absence of any child of the said Alva to represent those next in remain
In Williams v. Hassell, 74 N. C., 434, Reade, J., in discussing the power of the court in such cases, cites Watson v. Watson, supra. He makes no' reference to Ex Parte Dodd, supra. He notices the dictum in Watson v. Watson, and then draws a distinction between a case in which the remainder is to all the children of the life tenant and one in which the remainder is to such children of bis or her, as may be living at bis or her death, in which case, as it can not be known who will'be in the class, when the life estate falls in, there can be no one to represent the class. Ex Parte Miller, 90 N. C., 625; Young v. Young, 97 N. C., 132; Whitesides v. Cooper, 115 N. C., 570. It will be observed that the petition in that case was for a sale, there being no suggestion of a reinvestment of the proceeds to preserve the limitations. In Ex Parte Dodd the fund was ordered to be reinvested. The doctrine of representation is recognized in Branch v. Griffin, 94 N. C., 183; Overman v. Simms, 96 N. C., 451.
In Aydlett v. Pendleton, 111 N. C., 28, 32 Am. St. Rep., 776, the decision was based upon the ground that some of the parties interested objected to the sale. Shepherd, J., says:
Without discussing the case of Lipscombe v. Hodges, 128 N. C., 57, it is sufficient to say that the syllabus, “The courts will not decree a sale of land when it is limited in remainder to persons not in esse ” is misleading. That was not the real ground upon which the case was decided. There was no trustee before the court in that case.
In Justice v. Guion, 76 N. C., 442, the land was conveyed to a trustee for the benefit of the plaintiff for life with remainder to her children who should survive her, to be equally divided between them, with a provision that if either of the
In Smith v. Smith, 118 N. C., 735, it is impossible to tell what the limitations were. It is simply stated that the lands were conveyed to certain persons “in trust for certain individuals therein mentioned with limitations and contingent interests to numerous other persons therein named.” It does not appear whether the trustees were parties or whether there was any one in esse to represent those first in remainder. The opinion is equally indefinite and does not cite Ex Parte Dodd, but does cite Watson v. Watson and Justice v. Guion. The court overlooked the decision in Overman v. Tate. It must be conceded that these cases are in conflict with the current of authority in this State. It is unfortunate that a question of so irreat practical interest, involving the security of title to valuable real estate, should be in even apparent conflict.
In Finch v. Finch, 2 Vesey, 491, Lord Hardwicke says: “It is admitted to be necessary to bring the first person in entitled to the remainder and inheritance of the estate, if such is in being.If there is no first son in being, the court must take the facts as they stand. It would be a very good decree and no son born afterwards could dispute it unless he could show fraud, collusion or misbehavior in the performance of these trusts.”
We have not discussed these cases for the purpose of overruling them, but to classify and distinguish them, and to show
For the same purpose we desire to cite some well considered cases from other States: In Meade v. Mitchell, 17 N. Y., 210, 72 Am. Dec., 455, the court says: “In the English Court of Chancery the general rule is that in actions affecting the title of land it is sufficient to bring before the court the person entitled to the first estate of inheritance, with those claiming prior interests, omitting those who' might claim in remainder or reversion after such vested estate of inheritance. A decree against the person having the first estate of inheritance would bind those in remainder or reversion although the estate might afterwards vest in possession. I think therefore that under the general principles of equity practice, independent of our statute, a decree for partition in this case would be binding as well upon those who are parties to the suit as those who may hereafter come into being, entitled under the will to> an interest in the premises. And as the Legislature has provided that a sale of the lands may be made in cases where partition can not be had, I can see no reason why the judgment for a sale should not be made as° conclusive as a judgment in partition.” The statute under consideration was very much as ours in respect to the procedure and received the approval of the court. This case was cited and approved in Monarque v. Monarque, 80 N. Y., 322. As late as 1892, in Kent v. The Church, 136 N. Y., 10, 18 L. R. A., 331, 32 Am. St. Rep., 693, Earle, C. J., says: “When an estate is vested in persons living, subject
In Baylor v. Dejarnette, 54 Va., 152, the power of the court to order a sale in cases where property was thus fettered with limitations underwent a most exhaustive investigation, and in an able opinion the power was sustained. This case presented the exact question which we have before us.
In Falkner v. Davis, 59 Va., 651, 98 Am. Dec., 698, after a full examination and review of the authorities, both English and American, Moncure, P., says: “It seems to me therefore that the case of Baylor v. Dejarnette is a direct, binding authority in favor of the doctrine of representation before referred to and of its application to such a case as this.”
The Supreme Court of Illinois in Gavin v. Curtin, 171 Ill., 640, 40 L. R. A., 776, quoting from Voris v. Sloan, 68 Ill., 588, says: “Exigencies often arise not contemplated by the party creating the trust, and which, had they been anticipated, would undoubtedly have been provided for, when the aid of the Court of Chancery must be invoked to grant relief imperatively required; and in such cases the court must, as far as may be, occupy the place of the party creating the trust and do with the fund what he would have dictated had he anticipated the emergency. From very necessity, a power must exist somewhere in the community to grant relief in such cases of absolute necessity, and under our system of jurisprudence that power is vested in the Court of
In Bofil v. Fisher, 3 Rich. Eq. (S. C.), 1, 55 Am. Dec., 627, the same question was before the court. The Chancellor says: “It is necessary to the best interest of society, as I have before intimated, that there should be power lodged in some judicial tribunal authorized in certain exigencies to unfetter the titles of estates, otherwise they might be shackled to an inconvenient extent. In England the tenant for life, by suffering fine and recovery in which he alone is a party, may cut off all contingent limitations and remainders. In that country, courts of equity are in the habit under certain contingencies of doing the same thing in respect to the title, but with a more just regard to the rights of the remaindermen; for when that court by a sale divests the title of the contingent remaindermen in the property it preserves them for the fund.” The power of the court of Chancery in the State was sustained.
At the April Term, 1901, of the Supreme Court of Tennessee, in Ridley v. Holloday, 106 Tenn., 607, 53 L. R. A., 477, 82 Am. St. Rep., 902, Beard, J., reviews the English and American cases upon the subject and says: “A Chancery Court has inherently, without the a;id and in the absence of any inhibition of statute, jurisdiction and power to bind and conclude by its decree, converting realty into personalty, the rights and interests, whether legal or equitable, vested or contingent, of all persons whether in esse or in posse and whether sui juris or under disability, who are before the court either by service of process or by ‘virtual representation,’ but i t must satisfactorily appear that such conversion is for the best interests of all the parties, and the decree must award the several parties the same interest, in its proceeds which they
We might, but. for the length of this opinion, cite authorities from almost every State in the Union and from the English Reports showing a uniform current of the best considered judicial opinions upon this very important question. This is important as bearing upon the constitutional question raised by the demurrer in regard to the validity of the Act of 1903, the first section of which is as follows: “That in all cases where there is a vested interest in real estate, and a contingent remainder over to the persons who are not in being, or when the contingency has not yet happened which will determine who the remaindermen are, there may be a sale of the property by a proceeding in the Superior Court at term time, which proceeding shall be conducted in the manner pointed out in this Act; provided that this provision shall not apply to any case where the courts now have power to order a sale of contingent interests in land.” (The other section prescribes the mode of procedure.) As Alva C. Springs has no child living, this case cannot be brought within the rule laid down in Ex Parte Dodd, and although there are many authorities holding that the presence of the life tenant is sufficient to sustain the jurisdiction, we do not propose to go beyond the principle of that case. Therefore, but for the presence of a trustee, the plaintiff would not be entitled to relief. It is said, however, that the language of the will does not vest in Eli Springs any title to the property, and that he, therefore, can not represent the interests of all parties in esse and in posse. The language of the will indicates a purpose on the part of the devisor that the property shall be
“Where property ha» been settled by will or deed for life with limitations over to persons not in being, who are incompetent to exercise a legal judgment, the Legislature may authorize a sale and the reinvestment of the proceeds for the same uses, if such a course will be for the benefit of all concerned or beneficial to some of them and not injurious to the rest.” Hare’s Am. Const. Law, 816. “Such a sa]e simply turns the property into another form ivhere it may bear fruit for the first taker, who would otherwise have a barren inheritance and be postponed as regards real and substantial benefit to persons yet unborn. It can not, however, be properly exercised unless the proceeds can be placed in trust and held securely for the executory devisee or remainderman.” Ibid, 817.
In New York the question has received a careful consideration. In the case of Brevoort v. Grace, 53 N. Y., 245, 252, after declaring that courts of equity have the power to authorize the sale of lands belonging to infants in esse, the court proceeds to say: “Doubts were expressed in some of the cases whether this power extended to those not in being who might thereafter be entitled to some estate in the premises. The reason upon which the rule is based as to the former applies with equal force as to the latter. In both, there is a
In Soheir v. Gen'l Hospital, 3 Cush. (57 Mass.), 483, 497, the court says: “The Legislature authorizes a sale, talcing care that- the proceeds shall go to the trustees duly appointed in pursuance of the will of Benja Joy, for the use and benefit of those having the life estate and of those having the remainder under the will. This is depriving no one of his property, but is merely changing real into personal estate for the benefit of all parties in interest. This part of the resolve, therefore, is within the scope of the power exercised from the earliest time and repeatedly adjudged to be rightfully exercised by the Legislature.It is deemed indispensable that there should be a. power in the Legislature to authorize a sale of the estates of infants, insane persons and persons not known or not in being, who can not act for themselves. The best interests of those persons and justice to others often require that such sales should be made. It would be attended with incalculable mischief, injuries and losses, if estates in which persons are interested, who have not capacity to act for themselves or are not in being, could under no circumstances be sold and perfect titles effected. But in such cases the Legislature, as parens patriae, can disentangle and unfetter the estates by authorizing a sale, taking precaution that the substantial rights of all parties are protected and secured.”
In Pennsylvania, 14 S. & R., Estep v. Hutchman, (29
Article XV, Section 2, of the Constitution provides that, “The General Assembly shall regulate entails in such manner as to prevent perpetuities.” While it is not necessary to hold that this language gives to the Legislature the power to pass either general or special laws, destroying entails created before the enactment of such statutes, it would seem that the power is conferred to- enact general laws vesting in the courts the power to deal with and regulate the sale of property entailed, to the end that perpetuities may be prevented. This construction of the provision is not only consistent with, but it would seem necessary to effectuate, the policy of the law to prevent entails hampering the sale of property, thus preventing its free alienation and improvement. This has always been recognized and enforced as a fundamental principle of American law. We think both upon principle and authority the statute is constitutional and authorizes the sale of real estate conveyed or devised before its enactment.
The importance of this question and the apparently unsettled condition of the law in this State leading to the passage of the Act of 1903, we think justifies the length of this opinion and the citation of the authorities. The Act carefully prescribes the procedure and if the courts shall be diligent to ascertain the facts in each case and proceed with caution in making orders therein, the purpose of the Legislature will be accomplished without doing violence, but rather in accordance with the principles of our jurisprudence and
Upon a careful examination of the cases in our own Reports and those of other States, we are of the opinion:
1. That without regard to the Act of 1903, the court has the power to order the sale of real estate limited to a tenant for life with remainder to children or issue, upon failure thereof, over to persons, all or some of whom are not in esse, when one of the class being first in remainder after the expiration of the life estate is in esse and a party to the proceeding to represent the class, and that upon decree passed, and sale and title made pursuant thereto, the purchaser acquires a perfect title as against all persons in esse or in posse.
2. That when the estate is vested in a trustee to preserve contingent remainders and limitations the court may, upon petition of the life tenant and the trustee with such of the remaindermen as may be in esse, proceed to order the sale and bind all persons either in esse or in posse.
3. That since the Act of 1903, Chapter 99, the court has the power, when there is a vested interest in real estate and a, contingent remainder over to persons who are not in being or when the contingency has not yet happened which will determine whn the remaindermen are, to order the sale by conforming to the procedure prescribed by the Act.
4. That the Act is constitutional and applies to estates created prior to its enactment.
Of course in each of the classes named, the decree must provide for the investment of the fund in such way as the court may deem best for the protection of all persons who have or may have remote or contingent interests.
In the case before us, the judgment must be so modified
The plaintiffs will pay the costs of this court, to be recovered by them from the commissioner upon the sale of the property in controversy.
Judgment Modified and Affirmed.