Midyette v. Lycoming Timber & Lumber Co.

HoKE, J. It is submitted in the case agreed, among other things, that: “In a proceeding lately brought before the clerk of the Superior Court of Northampton County by Margaret B. Ellis, John H. Fitzhugh, and India W. Fitzhugh, his wife, W. T. Davis and Margaret E. Davis, his wife, against Andrew Fitzhugh and others, it was sought to sell certain standing timber standing on certain lands in said county, which *425 were devised in item 3 of tbe will of J. J. Bell, said item 3 reading as follows: ‘I give, devise, and bequeath to my daughter, Maggie, or Margaret, Eitzhugh (who was one of the plaintiffs in the above proceeding), during her life, the tract of land and house where she now resides in Garysburg, N. C., together with one-half of the tract of land known us my homestead tract mentioned in item second of this will, to have and to hold the said land and house and other buildings where she now resides in Garysburg, together with one-half in acreage, but not in value, of the tract of land known as my homestead tract, unto her the said Margaret Eitzhugh’s sole and separate use during her life only, and after her death, to such of her children and grandchildren living at her death as she may by her will appoint, and in case she shall make no such appointment by will, then to her children and grandchildren living at her death in equal portions, but such children shall take per stirpes and not.per capita,/ “The above proceeding was brought for the purpose of selling to the defendant company certain timber standing on certain of the land included in the devise, for the purpose of reinvesting the funds arising from such sale as provided by C. S., 1744, and the amendment to the ■same passed at the session of 1923, entitled ‘An act to amend section 1744 ■of the Consolidated Statutes, relative to the sale of contingent remainders,’ which amendment gave the clerk of the court jurisdiction. “In the proceeding brought before the clerk, the plaintiffs therein, •above named, were Margaret Ellis, who is Maggie or Margaret Eitzhugh, named in item 3 of said will, and the other plaintiffs are all the children ■of the said Margaret Ellis, and the defendants in said proceeding are all ler grandchildren. “In said proceeding a guardian ad litem, was appointed for the infant grandchildren in esse, and also for any grandchildren not in esse, whom the said Margaret Ellis might hereafter have; To the said proceeding-all the children and grandchildren of the said Margaret Ellis, as well as the said Margaret Ellis and any unborn grandchildren of hers, were parties, and no question is raised in this appeal as to the regularity of the said proceeding. In said proceeding an order was made by the ■clerk of the Superior Court, approved by Hon. E. A. Daniels, judge, holding courts in the Third Judicial District, directing a sale of the said timber, and finding as a fact that it was deteriorating in value, and that a sale of the same would materially promote and enhance the interests ■of all the parties, and in said proceeding G. E. Midyette was appointed commissioner and directed to sell said timber, rights, and privileges to the defendant in this action, the Lycoming Timber and Lumber Company, and the said company agreed with the said commissioner to purchase the same, and thereafter refused to take a deed from said commis *426 sioner for the same and comply witb its terms of purchase, assigning as its reason tbat the said commissioner could not make a good and indefeasible title. the said commissioner made report of said facts to the court in said proceeding, and recommended the sale of said timber, and asked the court leave to bring action against the defendant company to compel it to purchase the said timber according to its contract, and the clerk of the court made an order wbicb was approved by the Hon. E. A. Daniels, judge, now and then bolding the courts of the Third Judicial District, empowering the said commissioner to bring this action against the said defendant company to compel the specific performance of its contract; and thereupon the plaintiff, G. E. Midyette, commissioner, and the defendant company submitted this controversy without action upon an agreed statement of facts wbicb appear in the record. And the Hon. E. A. Daniels, judge, rendered judgment requiring the defendant to accept the deed tendered it for said timber, and to pay for the same, bolding tbat a good and indefeasible title could be conveyed it by said commissioner, and the defendant excepted and appealed to this Court.” Erom this, a correct and very satisfactory statement of the pertinent facts submitted in brief of plaintiff’s counsel, it appears tbat the land upon wbicb this timber is growing, and of wbicb under our decisions it is a part, is affected by a contingency by reason of the devise in remainder to the children and grandchildren of Margaret Eitzhugh living at her death, and so coming directly under the provisions of our statute, C. S., 1744, authorizing a sale for purposes of reinvestment. Poole v. Thompson, 183 N. C., 588-597; Thompson v. Humphreys, 179 N. C., 44; Dawson v. Wood, 177 N. C., 158; Pendleton v. Williams, 175 N. C., 248; Latham v. Lumber Co., 139 N. C., 9. It further appears tbat tbe proceedings under tbe statute, C. S., 1744, are in all respects regular, and in conformity witb requirements of tbe same, and tbe amendment thereto made at tbe recent session of 1923, same being House Bill 197, Senate Bill 75, ratified 9 February, 1923. And this being true, there is no valid reason presented against tbe due enforcement of tbe contract of purchase. Tbe only objection suggested by defendant is tbat there is no one made a party who has a vested interest in tbe property, but this was directly held otherwise in tbe case of Poole v. Thompson, supra. We consider it proper to say further tbat we fail to note in the record tbat any bond was given or required of the commissioner for the preservation and proper application of the proceeds of the sale. Such a bond is expressly required by an amendment to the statute, Laws of 1919, cb. 259, and should in no case be omitted. It is held, however, in the decisions cited tbat the omission does not ordinarily affect the title of the purchaser, and the same can and should be now supplied by an amended or supplemental decree. *427 Speaking to several of the questions similar to those presented in the present appeal, the Court, in Pool v. Thompson, supra, quoted witb approval from Dawson v. Wood, supra, and McLean v. Caldwell, 178 N. C., 424, as follows: “In proceedings under the statute (Pell’s Revisal, sec. 1590; C. S., 1744) to sell lands beld in remainder, upon contingencies rendering the remaindermen incapable of present ascertainment, etc., the necessary parties defendant are those of the remainder-men who, on the happening of the contingency, would have an estate in the property at the time of action commenced, and those remQtely interested to be represented and protected by a guardian dd litem, as the statute provides.” “Pell’s Revisal, sec. 1590; C. S., 1744, providing for the sale of land affected witb certain contingent interests does not in its terms or purpose profess or undertake to destroy the interests of the contingent remainder-men in the property, but only contemplates and provides for a change of investment, subject to the use of a reasonable portion of the amount for the improvement of the remainder, properly safeguarded, witb reasonable provision for protecting the interest of the unascertained or more remote remaindermen by guardian ad litem, etc., and is constitutional and valid.” “And in the opinion in McLean v. Caldwell, supra, the Court said: ‘From a perusal of these cases, and the authorities cited therein, it will clearly appear: (1) That on the facts presented the court bad full power to order a sale for reinvestment under the statute; (2) that the same can be effected by private negotiations, subject to the approval of the court, when it is properly made to appear that the best interest of the parties so require. This was the course pursued and directly approved in Dawson’s case, supra; (3) that ordinarily, and on the facts of this record, the purchaser is not charged witb duty of looking after the proper disposition of the purchase money, but when be has paid bis bid into court, or to the parties authorized to receive it by the court’s decree, be is ‘quit of further obligation concerning it.’ ” We find no error in tbe proceedings, and tbe judgment for plaintiff is Affirmed.