Frank v. I. Heiner & Son

Furches, J.: This appeal comes before us, from the court below, upon a case agreed, and the only question presented for our consideration is whether the assignment therein mentioned was executed. If it was executed the plaintiffs should not recover; if it was not, they should recover. The general rule as to the sufficiency of execution seems to be this: That where the maker of the deed has gone so far with its execution that he can no longer control it or recall what he has done, then the deed is considered exe *82 cuted and tbe courts will enforce the same. Kirk v. Turner, 1 Dev. Eq., 14. This may be done by delivery to the grantee or to some one for him, or it will be presumed by. his having it probated and registered. Helms v. Austin, 116 N. C., 751. And without something to rebut this presumption its registration is a delivery. McLean v. Nelson, 1 Jones, 396; Adams v. Adams, 21 Wallace (U. S.,) 185. The plaintiffs contend that the presumption arising from the probate and registration is rebutted by the facts that Tillery said to Heiner before the registration, when asked to accept the trust, “That he would like to do so, but could not answer until he saw Thomas H. Battle”; and that after it was registered and he was applied to, he refused to accept the trust; and rely on Gaither v. Gibson, Phil., 532, for this contention. But we do not think so. In the case cited the defendant, before registration, refused to accept the deed upon the allegation of a defect in the title. And the Court held that this refusal of Gibson rebutted the presumption arising from probate and registration. But in this case there was no refusal, by the trustee named, to accept the trust before the deed was probated and registered. But the intimation was that he would do so. What was said to Tillery, and by him to Heiner, before the registration, is no stronger for the plaintiffs and against the execution of the assignment than if he had known nothing about its execution, as in' McLean’s case, supra, and Adam’s case, supra. And in Adam’s case, as soon as the trustee was informed of the deed and that he was named as the trustee, he declined and refused to have anything to do with it. And yet the court sustained the execution of the deed, appointed another trustee and -enforced the trusts. *83 While it is necessary that there sould be a legal execution of an assignment like this to a trustee for the benefit of other parties it must be kept in mind that these other parties, the eestuis que trust, are the real parties in interest. They are the parties for whose benefit the deed was made. They are the equitable owners, and courts of equity will not allow them to be deprived of the benefit of their estate, because the trustee named refused to act. Burrill on Assignments (6th. Ed.) p. 312, Sec. 240, 241. It is a principle of equity that a trust shall not fail for the want of a trustee. If neccessary a court of equity will appoint á trustee to execute the trust. Adams’ Eq., 36 (7th. Ed.); Burrill, supra. We are therefore of the opinion that the assignment stated in the case agreed was legally executed and should be enforced by the court under its equitable jurisdiction. It is stated in the case on appeal “that plaintiff contended that this assignment wras void also for failure of the assignor to comply with the act of 1893.” There is nothing about the statute of 1893 in the case agreed, upon which the judge tried the case. And we do not know whether the grantor complied with this statute or not. If he did not, it would have been easy to so state in the facts agreed. Had this been stated in the case agreed, as one of the facts, it would have ended the case in plaintiffs’ favor, under the ruling of this Court in Bank v. Gilmer, 116 N. C., 684. But we cannot find the facts but must take them as agreed to by the parties. There is error in the judgment appealed from and the same must be reversed. Reversed.