Alexander v. Davis

• Court: North Carolina Supreme Court
• Writing for the Court: Davis, J
• Citation: Alexander v. Davis, 102 N. C. 17, 8 S. E. 768 (N.C. 1889)
• Decision Date: 18 February 1889
• Parties: Alexander v. Davis et al.

8 S.E. 768

(102 N.C. 17)

Alexander

v.Davis et al.

Supreme Court of North Carolina

February 18, 1889

Husband and Wife—Trust Property—Wife's Power to Charge—Exercise.

Land was conveyed by a husband in trust, to the use of his wife, free from his control, and to any such use as she might at any time appoint by writing signed with her hand, whether by deed attested by one or more witnesses, or by will duly executed. Held, that a mortgage by the husband and wife, duly executed and witnessed, was an execution of the wife's power of appointment, and conveyed the land; and that it was immaterial that the trustee did not join therein, as he held the naked legal title only, which followed the title conveyed by the wife.

C. F. Warren and J. E. Moore, for appellants. Pruden & Vann and Haywood & Pettigrew, for appellee.

Davis, J. Civil action to recover land, tried before Graves, J., at fall term, 1887, of the superior court of Washington county. The following are the facts agreed: (1) In August, 1868, the land in controversy belonged to L. B. Davis. (2) At that time Davis conveyed the said land to the defendant Davenport, trustee, by deed hereto attached and made part of this case, marked "A. " (3) Davis and wife remained in possession of said land from August, 1868, up to the present time. (4) On May 20, 1886, L. B. Davis and his wife, to secure a bond due by them to Alexander & Woodley, conveyed the said land to Alexander & Woodley by the mortgage deed hereto attached and made part of this case, and marked "B. " A copy of bond is also attached. (5) On March 19, 1887, Alexander & Woodley, in accordance with the provisions of said mortgage deed, sold the said lands at public biddings to the plaintiff Alfred Alexander, and executed to him a deed. (6) Joshua B. Davenport had no notice whatever of the execution by Davis and wife of the mortgage deed aforesaid, and Alexander & Woodley had no actual notice ofthe existence of the deed to Davenport. (7) The rental value of the said land is $50 per annum. (8) Davis and wife have refused to give possession after demand, and now withhold the same; and Davenport has refused to convey the legal title to the plaintiff. If upon these facts the opinion of the court be with the plaintiff, judgment is to be rendered in his favor against Davis and wife for the possession of the land, and the sum of $50 rent due, and the costs of this action, and against Davenport that he convey the legal title to the plaintiff; otherwise judgment shall be rendered that the defendants go without day and recover their costs.

The defendant Ann E. Davis is the wife of the defendant L. B. Davis; and the deed referred to as marked "A" contains the following: "In trust, that the said Joshua B. Davenport will hold the said Cool Spring tract to the sole and separate use of my wife, the said Ann Elizabeth Davis, and her heirs, free and discharged from any debts, control, or liability of me, her said husband, and also to any such use or uses as she may at any time appoint by writing signed with her hand, whether by deed attested by one or more witnesses, or by will executed in the manner required for the execution of wills. " The mortgage deed marked "B" was executed by L. B. Davis and Ann E. Davis, his wife, to M. M. Alexander and T. M....