134 S.E.2d 661 | N.C. | 1964
Hannah Vester STRICKLAND and husband, Bobby Strickland, John Milton Vester and wife, Madeline Vester, and Frank Lane Vester,
v.
H. P. JACKSON and wife, Annie S. Jackson.
Supreme Court of North Carolina.
*662 Sam B. Underwood, Jr., Greenville, for plaintiff appellants.
James & Hite, Greenville, for defendant appellees.
PER CURIAM.
In 56 Am.Jur., Waste, section 13, page 459, it is said: "It is well settled that one entitled to a contingent remainder cannot maintain an action at law against the tenant in possession to recover damages for waste, for the reason that it cannot be known in advance of the happening of the contingency whether the contingent remainderman would suffer damage or loss by the waste; and if the estate never became vested in him, he would be paid for that which he had not lost."
Here, Thelma Jackson Vester was paid for that which she had not lost, since the contingent remainder never became vested in her. Strickland v. Jackson, supra.
This Court held in the case of Goldsboro Lumber Co. v. Hines Bros. Lumber Co., 153 N.C. 49, 68 S.E. 929, that the life tenant and the remaindermen could by agreement sell the timber on the lands occupied by the life tenant, but it is clear from the opinion that neither the life tenant nor the remaindermen could sell without the concurrence of the other.
In the instant case, the timber was sold pursuant to an agreement entered into between the life tenants and all the then surviving contingent remaindermen. Furthermore, there is no contention that the proceeds from the sale were not distributed pursuant to the terms of the agreement entered into by the interested parties. Such a sale would not constitute waste nor an irreparable injury to the inheritance within the accepted meaning of that term. Therefore, we hold that such a sale would not terminate the life tenancies or work a forfeiture thereof.
The order sustaining the demurrer is
Affirmed.