McAfee v. Green.

CoNNOR, J., after stating the case: The defendants’ counsel except to the judgment herein, for that: 1. The deed from McAfee to Zane is not signed as trustee. The land is conveyed by Graham to McAfee “as trus *416 tee” with habendum to “his own use and behoof.” No othei* use is declared than such as would attach by operation of law, the deed reciting the payment of the purchase-money by the grantee. The word “trustee” is therefore surplusage not affecting the legal title conveyed by the operative words of the deed. 2. That upon his death, the heirs of the trustee hold the legal title. This is true when the legal and equitable estates are separated and the trustee does not convey the legal title. Clayton v. Rose, 87 N. C., 106, and many other cases in our Reports, the last of which is Cameron v. Hides, 141 N. C., 21. Hence, the legal and equitable estates were in McAfee in fee; when he conveyed to Zane all of the estate which he had, there was nothing left in him to vest in his heirs. 3. The trustee may be appointed by the Court, upon death of original trustee; hence, deed from substituted trustee is necessary to perfect' the title. As we have seen, the legal title vested in Zane by deed from McAfee, and by Zane’s deed to McAfee of 6 December, 1889, it revested in him upon the trusts therein declared. Upon the death of McAfee, the legal title descended to his heirs at law, subject to the trusts declared, to-wit: for Mrs. McAfee for life, remainder for themselves, subject to the limitations contained in the deed from Zane to McAfee. As Mrs. McAfee, upon the death of her husband, became discovert, but for the contingent remainder, the legal title, by operation of the statute of uses, would have vested in her for life and in her daughters in fee, thus combining both estates and making a perfect legal title. The parties, we presume, being so advised, filed their petition in the Superior Court, pursuant to section 1037, Rev., to have a new trustee appointed. All of the parties in interest joined in the petition, and upon the passing of the decree Mrs. Cornelia McAfee became the trustee, holding the legal title upon the same trusts as the original trustee, so far as, it *417 was competent for the Court to confer them. It is doubtful ■whether the power to sell and invest the proceeds conferred upon W. L. McAfee, being one of personal, confidence, involving the exercise of discretion, vested in the substituted trustee. Young v. Young, 97 N. C., 132; Baker v. McAden, 118 N. C., 740. This is not material here, because all parties in interest joined in requesting the appointment of a new trustee and no attempt is being made by the trustee to execute the power of sale conferred upon the original trustee. It is not very material whether the decree of the Clerk, substituting the new trustee, be erroneous or not, because no action was taken by Mrs. Cornelia McAfee, as trustee, affecting the title, and upon her death the legal title, if divested by the decree, immediately revested in the same persons as her heirs at law. ITpon the death of Mrs. Acheson and Mrs. Hamilton, two-thirds undivided interest vested in fee in their daughters, merging the legal and equitable estates, thus putting an end to all limitations upon their two-thirds interest. Assuming, as the parties have done, that upon the death of Mrs. Cornelia McAfee, the new trustee, that the legal title to one-third undivided interest descended to her heirs at law, her grandchildren and Cora McAfee in trust for said Cora in fee, subject to be divested by birth and survival of issue, it was clearly competent upon the application of all parties in interest, to appoint a new trustee to hold the legal title to preserve contingent remainders. Having done so, we can 'see no reason why, independently of the Statute of 1903, Rev., 1590, the Court, upon the application of all the parties in interest, the trustee representing contingent remainder-men, could not direct a sale of the land. This was held in Overman v. Tate, 114 N. C., 571, and the authorities reviewed in Springs v. Scott, 132 N. C., 548. To prevent any possible doubt of the existence of the power and to provide for its exercise and protect the interest of all parties in *418 remainder, whether in esSe or not, the Act of 1903, being-section 1590, Rev., was passed: “In all cases where there is a vested interest in real estate, and a contingent remainder over to persons who are not in being, or when the contingency has not yet happened which will determine who the remain-dermen are, there may be a sale of the property by a proceeding in the Superior Court at term-time, which proceeding shall be conducted in the maimer pointed out in this section.” The manner of procedure is specifically pointed out. The facts set out in the record bring this case clearly within the language and purpose of the statute as construed in Hodges v. Lipscomb, 133 N. C., 199. The purpose of the statute was clearly pointed out by the Chief Justice in his well-considered opinion in that' case, and we can add nothing of value thereto. In Smith v. Gudger, 133 N. C., 627, we again construed the statute and disposed of the same exception made here, saying: “To the suggestion in the demurrer that all persons who might, in any contingency, have an interest therein are not made parties, it is sufficient to say that the Act of 1903 was passed expressly to meet the difficulty therein suggested.” Anderson v. Wilkins, 142 N. C., 154. The statute is so manifestly in accordance with a sound public policy, as well as the promotion of private right and interests, that we have not hesitated to give it such a construction as effectuates the intention of the Legislature. In a country such as ours the highest public and private interests are promoted by removing obstructions to alienation and giving security to titles. To the exception that the sale is directed to be made privately, it is sufficient to cite Rowland v. Thompson, 73 N. C., 504; Barcella v. Hapgood, 118 N. C., 712. The power of the Court to order the sale to be made privately, when it appears to be promotive of the interests of the parties, has been too frequently adjudged by this Court to be considered an open question. The proceed *419 ing bas been conducted with careful regard to the statute and the course and practice of the Court. IJpon a careful consideration of the entire record and the exceptions of defendants, we find no error. The judgment must be Affirmed.