Smith v. . Witter

Allen, J. The deed under which the plaintiff claims was considered in Springs v. Hopkins, 171 N. C., 488, and it was there held that the children of W. Me. Smith and wife, who survived their parents, to-wit, Lillian Smith, Junius Smith, and Julia E. Smith, took an estate in fee with the right of successive survivorships, defeasible upon the death of said children without issue, and in that event over to Anna B. Lee and B. Rush Leo and to the survivor of them in fee, defeasible upon the' death of both without issue, in which last event the title would pass to W. H. Bailey in trust for the sole and separate use of Elizabeth Jane Lee in fee. The attempt to prevent Elizabeth Jane Lee from conveying her interest in the property described is void as a restraint on alienation (Trust Co. v. Nicholson, 162 N. C., 263.), and as her deed to the plaintiff was executed after the death of her husband, it was not necessary for the-trustee to join in the conveyance. Cameron v. Hicks, 141 N. C., 21. It. is also established that contingent interests, such as those before us, will pass by deed. Kornegay v. Miller, 137 N. C., 659 ; Beacom v. Amos, 161 N. C., 357; Hobgood v. Hobgood, 169 N. C., 490; Scott v. Henderson, 169 N. C., 661. It follows, therefore, as the plaintiff holds deeds from all who have any interest or title, contingent or otherwise, that he has an indefeasible title, if the deed from the guardian, purporting to convey the interest of’ his ward, a lunatic, is valid. This deed was executed under the authority of an ex parte proceeding commenced before the clerk of the Superior Court. The orders and judgments were approved'by a judge of the Superior Court, but there-was no appeal, taking the proceeding to the Superior Court, nor does it. *619 appear that any order or judgment was made or approved in term. It also appears from tbe proceeding that it was not brought for the purpose of selling the land, but only the interest of the lunatic therein, and there is neither prayer in the petition nor provision in the decree for a reinvestment of the proceeds of sale. The proceeding was not instituted under the act of 1903 and 1905 (now Revisal, sec. 1590) providing for the sale of certain contingent interests. “By the common law, as well as by statute, 17 Edward II., chap. 10, which was only declaratory of the common law, the King, as parens patria, took charge of the effects of a lunatic and held them, first, for the maintenance of him and his family, and, second, for the benefit of his own creditors, as the Court of Chancery might order from time to time. Shelford on Lunatics, pp. 12, 356, 498; Bac. Abr., title, Lunatics, c. “Thus in England, by the grant of the King, the Court of Chancery acquired exclusive, original and final jurisdiction over the person and property of lunatics. Our courts of equity in this State succeed to these chancery powers, and still retain them, except in so far as and to the extent only as they have been given to other courts by statute.” Blake v. Respass, 77 N. C., 195. The statutes relied on by the plaintiffs to confer jurisdiction on the clerk (Revisal, secs. 1896, 1897) bear substantially the same relation to the estates of lunatics that section 1798 does to the estates of infants, and neither purports to deal with other than vested interests. Indeed, if the statutes referred to go to the extent claimed by the plaintiff, the acts of 1903 and 1905, which were adopted after long discussion, were unnecessary, and the debate as to the power of courts of equity to sell contingent interests, which has prevailed since the case of Watson v. Watson, 56 N. C., 400, vain and useless. The whole question of the jurisdiction to sell contingent interests was elaborately discussed and the ■ authorities reviewed in Springs v. Scott, 132 N. C., 551, and the Court says in conclusion: “Upon careful examination of the cases in our own Reports and those of other States, we are of opinion: “1. That without regard to the act of 1903, the Court has the power to order the sale of real estate limited to a tenant for life, with remainder to children or issue, upon failure thereof, over to persons, all or some of whom are in esse, when one of the class being first in remainder after the expiration of the life estate is in esse and a party to the proceeding to represent the class, and that upon decree passed, and sale and title made pursuant thereto, the purchaser acquires a perfect title as against all persons in esse or in posse. “2. That when the estate is vested in a trustee to preserve-contingent remainders and limitations, the Court may, upon petition of the life *620 tenant and tbe trustee, with sucb of tbe remaindermen as may be in esse, proceed to order tbe .sale and bind all persons either in esse or in posse. “3. That since tbe act of 1903, chap. 99, tbe court has tbe power, when there is a vested interest in real estate and a contingent remainder over to persons who are not in being, or when tbe contingency has not yet happened which will determine who tbe remaindermen are, to order tbe sale by conforming to tbe procedure prescribed by tbe act. “4. That tbe act is constitutional and applies to estates created prior to its enactment.” Tbe Court also says in tbe first part of tbe opinion, on page 551,. “To tbe suggestion that this proceeding invoking tbe equitable powers of tbe Court, should have been instituted in tbe Superior Court in term, in which we concur,” and adds, after tbe enumeration of its conclusions, “Of course, in each of tbe classes named, tbe decree must provide for tbe investment of tbe fund in sucb way as the Court may deem best for tbe protection of all persons who have or may have remote or contingent interests.” ' Tbe case has been approved in Hodges v. Lipscomb, 133 N. C., 202; Smith v. Gudger, 133 N. C., 627; McAfee v. Green, 143 N. C., 415; Trust Co. v. Nicholson, 162 N. C., 263; O’Hagan v. Johnson, 163 N. C., 197; Bullock v. Oil Co., 165 N. C., 67. And in tbe Smith case tbe Court says: “We think, however, that tbe plaintiff erroneously brought this proceeding before tbe clerk. It is not a special proceeding for partition, but an equitable proceeding for tbe sale of property and reinvestment of tbe proceeds formerly cognizable in a court of equity, as set out in Watson v. Watson, 56 N. C., 400. We do not think that this equitable power is conferred upon tbe clerk.” Provision is also made in tbe several cases for a reinvestment of the funds, which could not be done if tbe courts permitted a sale of a contingent interest in land, which has been attempted in tbe proceeding under which tbe guardian has acted, and not tbe land itself. It is desirable that estates shall be unfettered and in tbe channels of commerce, but as long as tbe owner is within tbe law, tbe courts have no power to thwart bis purpose, and divert bis property contrary to bis intention, which would be tbe result if a contingent interest, which might become vested as to tbe entire j>roperty, under tbe scheme worked out by tbe owner, could be sold without provision being made for a reinvestment. Under tbe deed before us, tbe owner intended that tbe lunatic should own tbe whole of tbe land in a certain contingency, and it is proposed under tbe special proceeding to make this impossible. Wq are, therefore, of opinion that tbe clerk was without jurisdiction; that if tbe proceeding bad been in tbe Superior Court tbe decree ought *621 to have provided for a reinvestment of the proceeds of sale; that the deed of the guardian passed nothing to the plaintiff, and thát his title is not an indefeasible title in fee. Eeversed.