Irvin v. . Clark

Smith, C. J., (after stating the case). We shall not repeat the assignment of errors that follows the charge, for they are embodied in what has been already set out in the foregoing recitals. I. Exception: The equitable defence is not pleaded as required by the decretal order, and the motion to strike out so much as relates to this defence in the amended answer was denied. We are not willing to admit the insufficiency of the response to the order, inasmuch as it may not have been practicable to be more specific in regard to the contents of destroyed papers', but an answer to the complaint of the plaintiffs in this regard is, that the objection to the answer should have been made when it was filed, in order to afford the defendants an opportunity to make it, if they could, more definite and certain. Instead of this, it is put in as a compliance with the order at February Term, 1887, when the plaintiffs obtained leave to reply. Another term passes, the cause being continued by consent, and the motion is first made when the cause comes on for trial. Certainly, under these circumstances, the refusal was proper, if indeed the action of the Court was not the exercise of an unreviewable discretion. II. The second exception is to the introduction of the deed, *444 puporting to have been made under the direction of the Court. This objection, as we have recently had occasion to remark, is directed,' if it has force, not so much to the admission of the deed, except for irrelevancy, as to the effect to be given to it as a muniment of title. This and the preserved entries found on the docket are offered as fragmentary parts of an equitable suit, the original papers in which have been burned, which was regularly begun and prosecuted to its termination, in an order for title to the lands of the infants to be made, and made by their guardian, acting as commissioner. The ruling of the Court as to the recitals in the deed and the decretal orders found in the docket, the terms of which show their relations to a single and the same cause, is sustained by the statute. (The Code, chap. 8, entitled Burnt and Lost Records §§69-70 and 71), and by the decision in Hare v. Hollomon, 94 N. C., 14, so as not to need further elaboration. Exceptions to the charge, as well that refused as that given, remain to be considered. 1. Those instructions asked were all properly rejected. The defendants had not failed to show, but by force of the statute had produced prima facie proof of the divesting of the estate in remainder and its transfer to the defendant Clark, and no rebutting evidence had been offered to remove the presumption. There is evidence in the decretal orders of a suit in which, and as its consummation, the deed was executed. They show that a bill was filed and answered, and upon the hearing a decree entered directing the said Irvin to make the deed and convey the interests of the infants in the lands described in the complaiut to the purchaser. The variance of this proof from the statements in the amended answer is not such as can be allowed to defeat the action, and the Court, if necessary, would allow such further amendments as would *445 produce conformity. The Code,,§269. It is true that several plaintiffs have been born since those proceedings, but their interests were represented in such of them as were parties. The will lets in all after-born children who fulfil the description at the life-tenant’s death — the period fixed for the vesting of their estate in possession. Simms v. Garrot, 1 D. &. B. Eq., 393; Hawkins v. Everett, 5 Ired. Eq., 42; Fleetwood v. Fleetwood, 2 Dev. Eq., 222; Sanderlin v. Deford, 2 Jo., 74. If the devise had been to those children living at the death of their mother, there would have been a contingent and not a vested interest in either, for until that event occurred it could not be known who would take, and in such case the contingent interest could not be sold by a Court of Equity. Watson v. Watson, 3 Jones Equity, 400; Williams v. Hassell, 74 N. C., 434; Miller Ex parte, 90 N. C., 625; Overman v. Simo, 96 N. C., 451; Young v. Young, 97 N. C., 132. But when the gift is general, not being confined to survivors, when to take effect, it is otherwise, and by representation, those who may afterwards come into being are concluded by the action of the Court upon those whose interests are vested, but whose possession is in the future. The distinction is pointed out by Battle, J., delivering the opinion in Ex parte Dodd, Phil. Eq., 97. There is no error, and the judgment must be affirmed. Affirmed.