75 N.C. 585 | N.C. | 1876
The will of Mrs. Heron shows on its face that it was written by one who had just enough "law learning" to confuse him and to confound the judges and lawyers who are called on to say what it means.
Why the draftsman declares a use to the executors for the use of Frances Heron for life, and then for the use of her children, so as to make it a use upon a use and take it out of the operation of 27 Hen. VIII; and why he limits the legal estate to the executors of the surviving executor instead of to the surviving executor and his heirs, which is the technical word to make a fee simple, we are not able to conjecture. The intention of the testatrix would have been carried out by giving Mrs. Sneade a life estate in the land, with a limitation to such child or children (and the issue of such as died in her lifetime) who were living at her death and should have arrived at the age of 21 years, with a power in the executors to join with Mrs. Swann in selling the whole or any part of the land if in their judgment it was advisable to convert the land into money, then it would have been plain sailing.
We do not concur with his Honor in the opinion that the plaintiffs were not entitled to recover, meaning that the defendant had acquired the title by adverse possession; and taking that view only, as is (592) done by the pleading and the argument before us, we think that Mrs. Swann took under the will an estate for life in the trust, as distinguished from the use; in other words, the "use upon the use," and *411 that her trust estate was a general trust and not a special trust; in other words, she was entitled to the possession and the permanency of the profits and not merely a right to receive the profits from the hands of the trustees for her separate use and maintenance. We also think that the limitation over of this trust to the children of Mrs. Swann who answered the description was valid, whether as a contingent remainder or an executory contingent trust it is not necessary to decide, although we incline to the opinion that it could not be upheld as "a contingent remainder," because there is a "possibility upon a possibility," and because the remainder does not depend on the particular estate and await its determination, for there might be twenty-one years between them. But the limitation will be upheld as an executory devise, as it complies with the rule of perpetuity" and must take effect, if at all, in a life in being and twenty-one years and a few months for gestation."
We also think that the plaintiffs fill the description and are entitled to the estate, unless the land has been transferred under the power or has been lost by reason of adverse possession.
2. The land did not pass in fee simple by the deed executed by W. C. Lord for himself and as agent of Marsden Campbell and by Mrs. Swann and her husband in 1836.
In the absence of a power of attorney from Campbell to Lord as a part of "the paper title," the power of sale was not executed. "When a power of sale is given to two it is necessary for both to join in the deed." Wasson v. King,
That a married woman owning an estate for life in a trust estate has jusdisponendi is laid down in all of the books unless there be a restraint upon the power of alienation. In our case the defendant's counsel took the ground that the power of sale given to the executors created such a restraint. We do not think that can be inferred by the true construction of the provisions of the will; the power has no inference to the *412 jus disponendi of the life estate, and leaves that intact, but authorizes a sale of the fee simple, provided the trustees deem it to be advisable as supplemental to the right to sell the life estate vested in Mrs. Swann by force of her ownership of such estate. Again, it was said Mrs. Swann owned a life estate in a trust, and her deed passed only the trust, leaving the legal estate in the trustees, whose duty it was to enforce their legal estate by action. So Buck's possession was adverse to them, and their right of action is barred, ergo, the trust estate expectant upon the life estate is defeated under the familiar doctrine that when the legal estate is lost the trusts dependent on it, whether vested or contingent, go with it.
Whether by the deed of Swann and wife in 1836 the legal estate for her life passed to the purchaser by power of the statute (1 Rich. (594) III), together with the trust, is a question which we are not called on to decide. Mr. Saunders, in his learned treatise on the doctrine of uses and trusts (see pages 36-42), expresses the opinion that a use upon a use does not come within the operation of that statute, for the reason that at the date of the statute this subtle idea had not been conceived, and was only started to evade the statute. 27 Hen. VIII, page 43. This reason, in respect to a trust in fee simple, is not satisfactory, as it seems to me. The mischief which 1 Rich. III was intended to remedy, to wit, a fraud on the purchaser of a use by a transfer of the legal title to some third person before making a deed to the purchaser, extends equally to the purchaser of a "use upon a use"; and as the statute in general words provides, "the purchaser of a use shall have the legal estate without a conveyance by the trustee," it would seem to follow that the purchaser of "a use upon a use" should also have the legal estate by this "parliamentary magic"; and it will be noted that the exception of "a use upon a use," out of the operation of 27 Henry VIII, is put on the ground that as the statute carries the legal estate to the taker of the first use it would involve an absurdity if the statute, "uno flatu," took the legal estate from the taker of the first use and carried it to the taker of the second use. This reasoning has no application to the purchaser of "a use upon a use" under 1 Richard III and no attempt was made to evade it by any such subtlety. However this may be, it is clear from all the authorities and from principle that the purchaser of a trust estate for life does not acquire the legal estate under 1 Richard III; there is no provision for dividing
the legal estate, as is done by 27 Henry VIII; and if the entire legal estate passes to the purchaser of a particular estate in the trust the other parts of the trust would have nothing to support them. See Battle v.Petway,
For the error of his Honor in ruling that the possession under Buck was adverse there must be a venire de novo. We are not at liberty to give judgment for the plaintiffs on the issues found, for the facts are not set out as on a special verdict or a case agreed. Perhaps it is well, as the value of the property is large, as shown by the affidavit for removal, that the case should assume in some measure the nature of the old action of ejectment, which did not conclude the title. We think proper to call the attention of the counsel of plaintiffs to the fact that the complaint has no averments as to the executors of J. R. London. Are they living or dead? Did they die testate or intestate? These are (596) matters about which the court must be satisfied by the pleadings before a judgment can be rendered in favor of the plaintiffs "to have possession of the land and recover damages." They "own a use upon a use"; how are they to get the legal title? Can a cestui que trust maintain an action for land without joining the trustees?
What was the quantity of estate given to the executor of the surviving executor? If only a particular estate, where is the legal estate? Who are the heirs at law of Mrs. Heron and of the executors of the living executor? These questions are not presented by the pleadings and were not noticed on the argument, but there must be an adjudication in respect to them before the case can be disposed of by final judgment. If *414 Mrs. Swann was the heir or one of the heirs of Mrs. Heron, how does that fact affect the operation of her deed to Buck?
These necessary amendments may be allowed in the court below.
PER CURIAM. Error.
Cited: S. c.,
(597)
