142 S.E. 10 | N.C. | 1928
Upon the face of the pleadings — the complaint, the answer, and the reply — there appear certain undisputed facts. Harris Waddell made a will, the second item of which is in these words: "I give and devise to my grandsons, John Waddell and Henry Waddell, my tract of land lying on the north side of Molton Branch, said to contain 150 acres, to be equally divided, John's to be to him, his heirs and assigns forever, Henry's part I lend to him for his use his lifetime, and at his death I do devise to his heirs forever." Not John's interest, but Henry's, is in controversy. It is manifest that in the devise to Henry the word "heirs" must be construed in its technical sense as carrying the estate to the entire line of heirs; that as used here it is not a word of purchase, but a word of limitation; and that Henry acquired an estate in fee under the rule in Shelley's case.Nichols v. Gladden,
1. It may be said with respect to the first of these propositions that while parol trusts are recognized, and under certain conditions are upheld in our jurisprudence, in the absence of fraud, mistake, or undue influence, they cannot be engrafted in favor of the maker upon a warranty deed conveying to the grantee an absolute and unqualified title in fee. Gaylordv. Gaylord,
2. An answer to the plaintiffs' second position is given in Norris v.McLam,
3. The plaintiffs were likewise in error as to the running of the statute of limitations. The father of the defendants, the grantee in the deed, had possession of the land in controversy from 1899 to 1926, and the defendants have since held uninterrupted possession. This is admitted by the plaintiffs, but they say that the possession of the defendants was not adverse for the reason that Henry Waddell acquired only a life estate under the will and that during his lifetime the statute did not run against them as remaindermen. This is an erroneous interpretation of the devise, and such an error cannot affect the character of the defendants' possession. A suit for relief on the ground of fraud or mistake is barred by the lapse of three years, and a suit to redeem a mortgage, when the mortgagee is in possession, must be instituted within ten years after the right of action accrued. It is alleged in the complaint that the debt was payable at any time, or in effect that it was payable on demand; so in any event the plaintiffs are not entitled to the relief demanded.
We have pointed out the appellants' allegations for the purpose of showing that their claim is not meritorious; but they now assail the judgment on another ground. They except because the trial judge did not permit them to take a voluntary nonsuit.
The attorney who represented the plaintiffs did not attend the term of court at which the judgment was rendered. He "advised" the presiding judge "that it was impossible to try the case," but afterwards received information that a continuance would not be granted. He then prepared a judgment of nonsuit and mailed it to the judge requesting that it be signed. It was not signed, and upon this ground only the plaintiffs prosecute their appeal. Waiving the contention that upon the allegations and admissions in the pleadings the defendants were entitled to affirmative relief of which they could not be deprived by a voluntary nonsuit, we are unable to discover any error in the refusal to sign the *271 judgment tendered. While an attorney is not a public officer in the constitutional or statutory sense, he is an officer of the court, charged with the performance of an obligation to the public no less significant than his obligation to his client. His right to practice law is a privilege, not a natural right; and the manner in which the privilege is exercised is subject to the supervisory power of the court. For this reason he is expected to be present when he undertakes to represent his client in term, and if he is not, the court is under no obligation to waive his presence. The judgment is
Affirmed.