Bass v. . Moore

BaRnhill, J. The portions of the answer which plaintiffs seek to have stricken are not so irrelevant and immaterial as to require a reversal of the judgment below. Such questions as plaintiffs seek to present by their motion may be decided by objections to the evidence offered in support thereof at the trial. We enter into no detailed discussion thereof for the further reason that, even if stricken and not considered, plaintiffs are not entitled to judgment on the pleadings. In the action to vacate the Lamm-Dickinson deeds, the court acquired jurisdiction of the parties and the subject matter of the action. The judgment therein is not one that may be treated as a nullity. Monroe v. Niven, 221 N. C., 362, 20 S. E. (2d), 311; McRary v. McRary, 228 N. C., 714; Johnston County v. Ellis, 226 N. C., 268, 38 S. E. (2d), 31. If the facts alleged by plaintiffs, upon which they bottom their prayer for judgment vacating the former judgment in the case of Lamm v. Mobley et al., tend to establish fraud such as would vitiate the judgment, then that fraud is intrinsic. Their remedy is by motion in the cause. Fowler v. Fowler, 190 N. C., 536, 130 S. E., 315; Horne v. Edwards, 215 N. C., 622, 3 S. E. (2d), 1; Woodruff v. Woodruff, 215 N. C., 685, 3 S. E. (2d), 5; Rosser v. Matthews, 217 N. C., 132, 6 S. E. (2d), 849; Davis v. Land Bank, 217 N. C., 145, 7 S. E. (2d), 373; Coker v. Coker, 224 N. C., 450, 31 S. E. (2d), 364, and cases cited; Young v. Young, 225 N. C., 340, 34 S. E. (2d), 154; King v. King, 225 N. C., 639, 35 S. E. (2d), 893; Simmons v. Simmons, 228 N. C., 233. It follows that plaintiffs are not entitled to judgment on the pleadings vacating said former judgment. In so holding we are not inadvertent to the rule that in an action in ejectment either party may attack any instrument relied on by his adversary as a muniment of title. Powell v. Turpin, 224 N. C., 67, 29 S. E. (2d), 26, and cases cited; Eborn v. Ellis, 225 N. C., 386, 35 S. E. (2d), 238. The rule has no application here for the reason plaintiffs are not, *215 in any event, presently entitled to the possession of the locus. Their right of enjoyment has not accrued. It is admitted that Lizzie Lamm Driver, the life tenant under the will of N. W. Lamm, is still living. The judgment in the former action is valid, as against the adult defendants therein, if not the infants. Therefore, if Mrs. Lamm must rely on the judgment, then she recovered the Lizzie Lamm Driver life estate and the contingent right of the adults named in the limitation over in the event she should leave no issue surviving, if no more. She has, by mesne conveyances, transferred that interest—if not the fee—to the defendants herein. But even if we should concede that the life tenant, by failing to file answer in the former action, committed waste and forfeited her life interest in the property, there could be no acceleration as contended by plaintiffs. They are the named remaindermen, but their right of enjoyment is contingent upon whether they survive the life tenant. The right of enjoyment accrues when the contingency is fulfilled, for only then can it be ascertained with certainty to whom such right belongs. Hence the plaintiffs are not entitled to the present possession and enjoyment of the locus, for that right has not yet accrued. To hold otherwise on this record would defeat the express intent of the testator who has directed that the roll be called at the death of the tenant for life. Ordinarily there can be no acceleration of a contingent remainder. Claimants must await the happening of the event upon which their rights depend. Beddard v. Harrington, 124 N. C., 51; Hill v. Hill, 159 Tenn., 27, 16 S. W. (2d), 27; Compton v. Barbour, 5 A. L. R., 465 (Va.); Swan v. Austell, 261 F., 465 (cert. denied 252 U. S., 579, 64 L. Ed., 726); Foreman Trust & Sav. Bank v. Seelenfreund, 62 A. L. R., 201, Anno., ibid., p. 207. “The rule is general and well recognized that in the case of a contingent remainder, where it is dubious and uncertain as to what persons will be entitled to take the remainder, there can be no acceleration or vesting of the remainder by a renunciation of the particular estate by which the remainder is supported.” Schaffenacker v. Beil, 320 Ill., 31, 150 N. E., 333. In the light of what we have said, it is apparent that plaintiffs are not entitled to judgment on the pleadings. Hence the judgment below must be Affirmed.