Cherry v. Power Company.

C ON Non, J., after stating the case: Eliminating so .much of the history of the title to the land in controversy as precedes the execution of the deed by Judge Meares to J. A. Harman, trustee, the case comes to this: The locus in quo was conveyed to Harman to hold in trust for his wife, Margaret A., for her sole and separate use for the joint lives of her husband and herself, and if she survived her husband, then to her in fee. But if she should die while under cover-ture, leaving children surviving, then to such children in fee. Other contingent estates are provided for, but as the first limitation has been met, and the fee vested, it is unnecessary *409 to set them out. Thus, as we construe tbe deed, Mrs. Harman bad an equitable estate for tbe joint life of ber husband and berself and a contingent remainder in fee dependent upon ber surviving bim, with remainder over to ber children dependent upon ber predeceasing ber husband. Tbe further provision placing a restraint upon ber right of alienation, without tbe consent of ber trustee, applies to ber power to sell, transfer, etc., ber interest or estate in tbe property. There is nothing on tbe face of tbe deed indicating an intention to permit ber to dispose of a larger estate than that vested in ber. In that respect tbe deed differs from that in Cameron v. Hicks, 141 N. C., 21, wherein tbe power to appoint was “in fee or otherwise,” and Kirkman v. Wadsworth, 131 N. C., 453, where tbe power was-to appoint “such estates as tbe feme covert might limit.” Tbe draughtsman evidently thought that Mrs. Harman, unless restrained by tbe deed, would have tbe power to dispose of ber equitable separate estate as a feme sole, as was tbe English doctrine and once so held by us, and, for ber protection, placed restraint upon ber power by prescribing that she could do so only with tbe consent of her trustee. Tbe substitution of ber husband as trustee was permissible and valid. Kirkman v. Wadsworth, supra. It is not material to inquire whether tbe deed from Mr. and Mrs. Harman refers to tbe power or not. If necessary that it should have done so, we think that there is sufficient evidence upon tbe face of tbe deed to show that they were pursuing tbe power. It is, however, well settled that tbe deed is a valid execution of tbe power to tbe extent of conveying ber interests. Tbe question is fully discussed and the authorities cited by Mr. Justice Brown in Kirkman v. Wadsworth, supra. Prince, the grantee, in tbe deed of 16 May, 1868, acquired all of tbe right, title and interest of Mrs. Harman, and bis possession under tbe deed to the day of ber death,. 25 June,' *410 1885., was rightful. In this respect tbe case is distinguished from King v. Rhew, 108 N. C., 696; Kirkman v. Holland, 139 N. C., 185, and Cameron v. Hicks, supra. In neither of these cases did the trustee join in the deed, and no title passed as against him by the deeds executed by the ceslui que trust eni. Eor this reason the entry by the gTantee was an ouster of the trustee and put him to his action; the statute thereby began to run against him, with the result that by lapse of time his right of entry was barred, and the right of his cestui que trustent fared the same fate. Here the entry was rightful, and the possession continued to be so until the death of Mrs. Harman, 25 June, 1885. Upon the happening of that event her interest ceased, and it became the duty of the trustee to convey the land to her children, the present plaintiffs. As the purpose of the trust was fully accomplished, the necessity and reason for keeping the legal and equitable estates separate no longer existed, and, by operation of the statute of uses, aptly called “parliamentary magic,” the use becomes executed and the legal estate vested in the plaintiffs. McKenzie v. Sumner, 114 N. C., 425; Perkins v. Brinkley, 133 N. C., 154. When an estate is given to a trustee for a special purpose creating a special trust, as for the sole and separate use of a feme covert or to preserve contingent remainders, the legal title vests in him so long as the execution of the trust requires it, and no longer. Battle v. Petway, 27 N. C., 576; Cameron v. Hicks, supra; Steacy v. Rice, 67 Am. Dec., 447. The plaintiffs’ right of entry, therefore, accrued upon the death of their mother, and the statute began to run from that time. As the deed from Mr. and Mrs. Harman professed to convey the fee, it was good as color of title from that time, and the plaintiffs, unless under disabilities, were barred at the end of seven years, or on 25 June, 1892. His Honor found that two of the plaintiffs were at that time and, until the beginning of this action, continued under disabilities. As to the others, the statute is a bar. *411 Several interesting questions were discussed in the briefs and the oral arguments which, in view of the construction which we have put on the marriage settlement, do not arise. The feme plaintiffs are not within the provisions of the Act of 1899, ch. 78. They had seven years from 13 February, 1899, or until 13 February, 1906, to sue. The action was begun 10 February, 1906. We concur with his Honor in both appeals. Let it be certified that there is No Error.