Parham v. . Henley

’WinborNe, J. The sole argument and contention of appellant on this appeal is that there is error in the judgment as of nonsuit from which the appeal is taken in that he has ripened title to the land in question by seven years adverse possession under color of title. G. S., 1-38. In *408 tbe light of the relationship of the parties as to the property involved, we are unable to agree that there is error. The statute relating to seven years adverse possession under color of title is inapplicable. Twenty years adverse possession would be necessary. G. S., 1-40. Winstead v. Woolard, 223 N. C., 814, 28 S. E. (2d), 507. First: The deed from J. K. Eeynolds to Mrs. Eliza Parham, Trustee, creates an active trust, Fisher v. Fisher, 218 N. C., 42, 9 S. E. (2d), 493; Deal v. Trust Co., 218 N. C., 483, 11 S. E. (2d), 464. J. K. Eeynolds is the beneficiary of the trust during his lifetime, and at his death, Mrs. Eliza Parham, individually, C. E. Henley, and the others named, are to take as the ultimate beneficiaries or remaindermen, share and share alike. Compare Pritchard v. Williams, 175 N. C., 319, 95 S. E., 570. While it is provided that upon the death of J. K. Eeynolds, and the payment of his just debts and funeral expenses, the trustee shall have power to sell any of the property conveyed then remaining in her hands as trustee and shall divide the proceeds among the named remaindermen, any proceeds of the realty will be stamped under the law with the character of realty in determining the. relationship between such remaindermen. Lafferty v. Young, 125 N. C., 296, 34 S. E., 444; Linker v. Linker, 213 N. C., 351, 196 S. E., 329. The remaindermen take severally “share and share alike.” Thus as respects the equitable remainder in the realty conveyed, the deed created in and among them the relation of tenants in common. This remainder vested absolutely in them upon the death of J. K. Eeynolds on 8 "November, 1936. Second: At the time J. K. Eeynolds executed the deed to Mrs. Eliza Parham, Trustee, she was the wife of the plaintiff and to their union three children had been born alive, and were then living. Hence, under the law the plaintiff as the husband of Mrs. Parham acquired under said deed a right of curtesy initiate in that portion of the proceeds of the sale of real property covered by the deed of trust to which his wife would be entitled. This was his relationship to the property at the time the deed was made to him by J. K. Eeynolds on 28 June, 1934, and upon the death of his wife on 8 July, 1936, this right became an estate by the curtesy consummate. Thereafter he and his children stood in relation to such portion of the proceeds of the realty in the place and stead of his deceased wife, that is, as tenants in common with the other named remaindermen, and the right to receive and possess it became absolute upon the death of J. K Eeynolds. Therefore, as against the remaindermen as tenants in common twenty years adverse possession would have been necessary to ripen title in plaintiff. Winstead v. Woolard, supra. If it be conceded that the acts of ownership of the plaintiff, and his exercise of control over the property in question constituted *409 adverse possession, wbicb it is unnecessary to decide, tbe time elapsing before tbe institution of this action is inadequate. Hence, tbe judgment below is Affirmed.