58 S.E. 1083 | N.C. | 1907
Lead Opinion
after stating the case: Plaintiffs,proposed to show by B. T. Webb that the deed of 1 March, 1869, Inade by Mary M. Webb, who intermarried with Robert S. Hay, conveyed the lot in controversy to James B. Webb and his wife for their joint lives and the life of the survivor, remainder to their children. It was admitted that the courthouse “in which the deed was recorded was destroyed by fire during the year 1880, and that the original deed was lost.” The Court, upon defendants’ objection, excluded the testimony, and plaintiffs excepted. The purpose of the proposed testimony was to avoid the effect of the substituted deed of 28 June, 1881, by showing that the recital therein and the habendum were incorrect. It will be observed that, in the seventh paragraph of the complaint, plaintiffs, referring to the deed of 1 March, 1869, and its destruction, say’that the said Mary Hay executed the deed of 28 June, 1881, “conveying said lot in the same way and manner as the said lost or destroyed deed” (except that the names of the children of a deceased daughter were inserted). The substituted deed of 28 June, 1881, is made a part of the complaint. It is true that in a preceding paragraph they say that the lost deed, of 1 March, 1869, conveyed to James B. Webb a life estate.
We are thus brought to the consideration of the deed of 28 June, 1881, for- the purpose of ascertaining what estate was vested in James B. Webb. Whatever he acquired by that deed he also had by the deed of 1 March, 1869, because his daughter conveyed by the latter deed “in the same way and manner” as in the first. Plaintiffs insist that the trust declared was passive, and that, by operation of the statute of uses, James B. Webb took an estate for his life in the land. From this position they conclude that the children had no title to or estate in the lots, other than a vested remainder, until the death of James B. Webb, 3 August, 1901, and that, therefore, the statute of limitations began to run against them at that time.
Defendants, on the contrary, insist that the trust impressed upon the legal title was active, imposing upon the grantees and trustees duties in respect to the property which made it necessary for them to hold the legal title; that James B. Webb took no estate in the land; that the case comes within one of the well-recognized classes not affected by the statute of uses. From this position they conclude that the ouster, under the
There is, however, another view of the case equally decisive of plaintiffs’ contention. The deed from B. T. Webb, commissioner, reciting that proceedings Avere had in the Superior Court upon the petition of himself and the other OAvners of the lot, resulting in his appointment as commissioner, sale of the property, payment of the purchase money, ete., was recorded immediately after its execution, and, upon the destruction of the courthouse, recorded a second time, in 1881. There is evidence in the record showing conclusively that the purchasers under that deed took possession, and those claiming under them have continued therein; that the defendants haA^e put valuable improvements upon the property; that plaintiff George B. Webb has made conveyances of adjoining lots call--ing for the lines of the one in controversy as the property of the purchasers; that all of these facts have been known to him since 1874. It is also apparent that James B. Webb and
Affirmed.
Dissenting Opinion
dissenting: I do not understand the facts of this case as do my associates. It seems to me that there was sufficient allegation in the complaint of an intention and agreement on the part of Mary IT. Webb (afterwards Mrs. Robert 8. Hay) to convey to James B. Webb an estate for life in the land, and whether legal or equitable can make no difference, in the-view I take of the law of the case. If, therefore, the substituted deed of 28 June, 1881, did not convey such an estate as the parties intended should pass to James B. Webb, and, as they distinctly allege, did pass by the original deed, why were not the plaintiffs entitled to establish the mistake, if they could do so by the requisite proof ? If the deed of 28 June, 1881, while intended to take the place of the one of 1869, which gave James B. Webb a life estate, failed, by reason of the mistake of the draftsman to convey a life estate to him, and there was a mutual mistake, as, I think, is sufficiently alleged in the complaint, though not very formally or with that precision so much to be desired in pleadings, it would seem that his Honor erred in excluding the evidence offered for the purpose of proving the fact. Can the mere circumstance that the plaintiffs have placed a wrong construction upon the deed of 1881, as the majority think they have, preclude their right to have it conformed to what was really the purpose in making it? The substance of the allegation, when properly considered, is — and that is what the plaintiffs really meant'— that the deed of 1881 did convey a life estate to James B.
I gave my concurrence to tbe decisions in Kirkman v. Holland, 139 N. C., 185, and Cameron v.' Hicks, 141 N. C., 21, most reluctantly, and only in deference to tbe prior decisions in King v. Rhew, 108 N. C., 696, and Clayton v. Rose, 87 N. C., 106, and the greater learning and wisdom of my brethren, because I believe tbe principle underlying those decisions is essentially wrong, and will work, if it has not already wrought, great injustice. I do not think tbat when a life tenant is ousted, even though he has only an equitable estate, tbe legal title being in a trustee for him, and tbe dis-seisin continues long enough to bar bis trustee, tbat persons entitled in remainder should be prejudiced by the inaction of tbe trustee, and there is eminent authority for this position. The bar should operate only against the estate of tbe life tenant, just as an estoppel is not permitted to extend beyond the estate of the person bound by it. James B. Webb died in August, 1901, and the life estate then fell in. This action was commenced in April, 1902, by tbe remaindermen, in full time for the assertion of their rights by the plaintiffs.
I would enter more fully into the discussion of the principle-involved in King v. Rhew, Kirkman v. Holland and Cameron v. Hickes if it would not extend this opinion to an unreasonable length. I may undertake to express my views at length on that subject at some future and more opportune time.
I • agree with my brethren that this case bears no resemblance to Joyner v. Futrill, 136 N. C., 301, or Perry v. Hackney, 142 N. C., 368, and for that reason they were not cited..
Lead Opinion
WALKER, J., dissenting. The facts material to an understanding of the appeal, as shown by admission in the pleadings and the uncontradicted evidence, are: The title to the land in controversy was, prior to 1 March, 1869, in James B. Webb, father of plaintiff, George B. Webb, and those under whom the *137 feme plaintiff, Emma P. Webb, claim. On 1 March, 1869, the land was sold by the sheriff of Lenoir County, under executions issued upon judgments against said James B. Webb, and conveyed to Mary M. Webb, his daughter, who intermarried with Robert S. Hay. Plaintiffs allege that, subsequently, in 1869, the said Mary M. Webb conveyed said lot of land by deed in fee simple, as tenants in common, to Benjamin T. Webb, George B. Webb, N. H. Webb (now the wife of H. G. West), J. W. Webb, Carrie J. Webb (now the wife of D. R. Midyette), Emma Webb (now the wife of T. W. Noland), and Martha I. Webb, subsequently the wife of one Lewis Meyer, and who has since died, leaving as her only heirs at law Lily and Daisy Meyer surviving her. That (190) in said deed mentioned in the fourth paragraph of this complaint the said James B. Webb was given and granted an estate in said lot of land for his own life, the grantees named in said fourth paragraph to have and to take their interest in the same after the death of the said James B. Webb. That the said deed was recorded in the register's office of Lenoir County and said State, in book No. 42, page 295, the records of which have been destroyed by the fire of 1878 or 1880, except the index thereto, and the said deed itself is lost or destroyed and cannot be found, after a thorough search therefor. That the said Mary M. Webb, who, on 28 June, 1881, was Mary M. Hay, wife of Robert S. Hay, did, together with her said husband, execute, on said 28 June, 1881, another deed in place of said lost or destroyed deed, conveying said lot of land in the same way and manner as did the said lost or destroyed deed, except as to Martha J. Webb, who intermarried with one Lewis Meyer, and she having died prior to said 28 June, 1881, her share in said lot of land is in the substituted deed conveyed to her only heirs at law, Lily and Daisy Meyer. (See said deed, recorded in said county and State, in the register's office, in book No. 6, pages 558, 559, 560, as part of this complaint.)
The deed of 1 June, 1881, referred to, was put in evidence, and contained the following language: "That whereas, on or about the first day of March, A.D. 1869, the said Mary M. Hay, then Mary M. Webb, for and in consideration of natural love and affection, did sell and convey to the said Benjamin T. Webb, George B. Webb, N.M. Webb (now N.M. West), J. W. Webb, Carrie J Webb, Emma Webb, and Martha J. Webb (mother of the said Lily and Daisy Meyer), and their heirs, certain tracts or lots of land in the county of Lenoir, in and near the corporate limits of the town of Kinston, . . . adjoining the lots of John Ennis and John D. Long; and whereas the said lots of land were by the said Mary M. Hay, then Mary M. Webb, conveyed and assigned to the said B. T. Webb and others, and their heirs, by a certain deed of absolute conveyance, duly executed, but with (191) *138 the special trust and confidence that they, the said B. T. Webb and others, pay over and deliver to their father, James B. Webb, the rents and profits of said lands during his natural life, and that the said J. B. Webb be allowed to occupy the said premises as a home for himself and family during his natural life; and whereas the said deed of conveyance is now supposed to be lost: Now, therefore, this identure witnesseth, that for and in consideration of the foregoing premises, together with the further consideration of the love and affection to them, the said B. T. Webb and others, borne by the said Mary M. Hay and husband, Robert S. Hay, have given, granted, released, confirmed, and quitted claim, and by these presents do give, grant, release, confirm, and quitclaim unto the said B. T. Webb and others, their heirs and assigns, all their right, claim, interest, and property in and to the aforesaid parcels of land, to have and to hold to them, the said B. T. Webb and others, and their heirs in fee simple, forever. But with this special trust: that they pay over annually and deliver to James B. Webb the rents and profits of said lands for and during his natural life, and they permit the said James B. Webb to occupy and use said premises as a home for himself and family during the term of his natural life."
On 17 December, 1874, B. T. Webb, one of the sons of James B. Webb, executed a deed, describing said lots, to R. W. King, in which are set forth the following recitals:
"Whereas, Benjamin T. Webb, commissioner appointed by the court to sell a certain lot of land mentioned in the petition of B. T. Webb, Lewis Meyer and wife (Martha Jane), George B. Webb, Nannie Webb, Caroline J. Webb, Emma Webb, and James B. Webb and wife, Margaret; and whereas, in pursuance to the order of said court, I, Benjamin T. Webb, commissioner as aforesaid, having advertised said lot (192) of land, agreeably to law and agreeably to the order of said court, for more than thirty days, did expose the same at public sale at the courthouse door in the town of Kinston, Lenoir County, on 14 December, 1874, when and where Richard W. King became the purchaser, he being the last and highest bidder," etc.
R. W. King conveyed the lot to one Anthony Blount, and, by a connected chain of conveyances, such title as King acquired vested in the defendants Peter R. Borden and E. W. Borden during the years 1885 and 1886, at which time they entered into possession, and have continued therein, claiming under said deed, until the institution of this action, 1 April, 1902. The deeds from King and others in the chain of defendants' title, including those to themselves, are duly recorded. Plaintiffs allege that the deed of B. T. Webb, commissioner, to King was void and conveyed no title, by reason of fraud, misrepresentation, etc., in respect to the alleged proceedings under which it purports to *139 have been made, etc. It is unnecessary to set forth in detail plaintiffs' contentions in this respect. James B. Webb died 3 August, 1901. Plaintiff George B. Webb was of full age 8 July, 1876. The youngest child, a daughter, was of full age 17 February, 1888. All of the daughters married before reaching their full age. The children of James B. Webb, except plaintiff George B. Webb, executed deed for such interest as they had in the lot to plaintiff Emma P. Webb, wife of George B. Webb, after the death of their father.
Plaintiffs demand judgment for possession of the land, and damages for withholding, etc.
Defendants, conceding that James B. Webb owned the lot, and that his title vested in his daughter, Mary, allege that, by virtue of the deed of B. T. Webb, commissioner, and the mesne conveyances, they are the owners thereof. They also rely upon the several statutes of limitation, etc.
His Honor was of the opinion, first, that the deed executed by (193) Mary Hay 28 June, 1881, referred to in paragraph seven of the complaint, did not vest a life estate in James B. Webb; second, that parol evidence was not admissible to contradict the averments in allegation seventh of the complaint. He expressed the opinion that plaintiffs were not entitled to recover, whereupon they excepted, submitted to judgment of nonsuit, and appealed.
After stating the case: Plaintiffs proposed to show by B. T. Webb that the deed of 1 March, 1869, made by Mary M. Webb, who intermarried with Robert S. Hay, conveyed the lot in controversy to James B. Webb and his wife for their joint lives and the life of the survivor, remainder to their children. It was admitted that the courthouse "in which the deed was recorded was destroyed by fire during 1880, and that the original deed was lost." The court, upon defendants' objection, excluded the testimony, and plaintiffs excepted. The purpose of the proposed testimony was to avoid the effect of the substituted deed of 28 June, 1881, by showing that the recital therein and the habendum were incorrect. It will be observed that, in the seventh paragraph of the complaint, plaintiffs, referring to the deed of 1 March, 1869, and its destruction, say that the said Mary Hay executed the deed of 28 June, 1881, "conveying said lot in the same way and manner as the said lost or destroyed deed" (except that the names of the children of a deceased daughter were inserted). The substituted deed of 28 June, 1881, is made a part of the complaint. It is true that in a preceding paragraph they *140
say that the lost deed, of 1 March, 1869, conveyed to James B. Webb a life estate. The deed of 28 June, 1881, which "conveyed the (194) land in the same way and manner," when made a part of the complaint and put in evidence, became the basis upon which the court must, by its construction, ascertain what estate is conveyed. The plaintiffs, having elected to claim under this deed, cannot show, in the absence of any allegation of mistake in the maker or draftsman, that the deed of 1 March, 1869, conveyed a different estate from that described in the deed. This would be not only to contradict their own allegation but the deed under which they claim. While, under The Code system procedure, it is settled by many decisions of this Court that, in an action for the recovery of land, the plaintiff may, by proper averments, invoke the equitable power of the court to reform a deed in his chain of title, he must make the essential averments, so that the defendant may either admit or deny them, and an issue may be framed presenting the controversy in that respect. He cannot set up a deed as the foundation of his title, and, without amendment of his complaint, when he finds that it does not serve his purpose, attack it by parol evidence. The law is well stated by Mr. Justice Walker inBuchanan v. Harrington,
We are thus brought to the consideration of the deed of 28 June, 1881, for the purpose of ascertaining what estate was vested in James B. Webb. Whatever he acquired by that deed he also had by the deed of 1 March, 1869, because his daughter conveyed by the latter deed "in the same way and manner" as in the first. Plaintiffs insist that the trust declared was passive, and that, by operation of the statute of uses, James B. Webb took an estate for his life in the land. From this position they conclude that the children had no title to or estate in the lots, other than a vested remainder, until the death of James B. Webb, 3 August, 1901, and that, therefore, the statute of limitations began to run against them at that time.
Defendants, on the contrary, insist that the trust impressed upon the legal title was active, imposing upon the grantees and trustees duties in respect to the property which made it necessary for them to hold the legal title; that James B. Webb took no estate in the land; that the case comes within one of the well-recognized classes not affected by the statute of uses. From this position they conclude that the ouster, under the deed of B. T. Webb, 17 December, 1874, put the statute of limitations into operation against the trustees, and that, being under (196) color, it ripened into a perfect title at the end of seven years. The solution of this controversy depends upon the character of the trust created by the deed. The lot is conveyed to B. T. Webb and others in trust "that they pay over annually and deliver to James B. Webb the rents and profits of said lands for and during his natural life, and they permit the said James B. Webb to occupy and use said premises as a home for himself and family for and during his natural life." It is well settled that "The duty to collect or receive the rents, profits, and income of the estate, and pay over the same to the persons entitled thereto, is generally inseparable from the personal control and supervision of the estate by the trustee, and requires that legal title to the corpus upon which the rents and profits accrue shall be in the trustee." 28 A. and E., 926. We had occasion to consider the question in Perkins v. Brinkley,
Here the holders of the legal title are required to "pay over annually and deliver the rents and profits" to James B. Webb during his life. How can they pay over and deliver unless they "rent and collect"? (197) It seems clear that to execute the trust, to discharge the duty imposed, they must of necessity hold the legal title, control and manage the property. They are further to permit him to occupy the premises "as a home for himself and family," thus showing the intention of the maker of the deed, that, as to the portion of the property suited for that purpose, the father is to "occupy" for the restricted purpose named, and, as to the other part, they are to rent it out and receive the rents and pay them over to him annually. We think it apparent, in view of the fact that the property had, just preceding the execution of the deed, been sold under executions against him, that it was the purpose of his children to take the title and impress upon it a charge, or trust, for the benefit of their father — to remove it beyond his control or power to dispose of it — in other words, to create an active trust for his benefit. The deed is carefully drawn to effectuate that purpose, and apt language is used to that end. This being settled, it follows, upon the well-settled doctrine of this Court, that the ouster of James B. Webb was the ouster of his trustees, and put them to their action. This principle was clearly announced by Smith, C. J., in Claytonv. Rose,
There is, however, another view of the case equally decisive of plaintiffs' contention. The deed from B. T. Webb, commissioner, reciting that proceedings were had in the Superior Court upon the petition of himself and the other owners of the lot, resulting in his appointment as commissioner, sale of the property, payment of the purchase money, etc., was recorded immediately after its execution, and, upon the destruction of the courthouse, recorded a second time, in 1881. There is evidence in the record showing conclusively that the purchasers under that deed took possession, and those claiming under them have continued therein; that the defendants have put valuable improvements upon the property; that plaintiff George B. Webb has made conveyances of adjoining lots calling for the lines of the one in controversy as the property of the purchasers; that all of these facts have been known to him since 1874. It is also apparent that James B. Webb and other persons having knowledge of these facts are dead. It also appears that B. T. (199) Webb, the person who made the deed and received the purchase money in 1874, being $118, has, since the death of his father, executed a deed to George B. Webb, conveying his undivided one-fifth interest, for $500, to the wife of George B. Webb; that the other children have likewise conveyed to her for a recited consideration of $500 for each share. The deed made by B. T. Webb, commissioner, is not, upon plaintiffs' averments, void, but, if they be true, may be in equity set aside for fraud practiced by said B. T. Webb, either alone or, as charged by plaintiffs, in conspiracy with others. In view of these facts, and the lapse of twenty-eight years of unexplained silence, it would seem that a court of equity would refuse to interfere by setting aside the deed. In Harrison v.Hargrove,
Affirmed.