American Trust Co. v. Nicholson

• Decision Date: 13 May 1913
• Citation: 78 S.E. 152,162 N.C. 257
• Parties: AMERICAN TRUST CO. v. NICHOLSON.
• Court: North Carolina Supreme Court

78 S.E. 152

162 N.C. 257

AMERICAN TRUST CO. v. NICHOLSON.

Supreme Court of North Carolina

May 13, 1913

Appeal from Superior Court, Mecklenburg County; Webb, Judge.

Controversy between the American Trust Company and W. L. Nicholson submitted without action. From a judgment for plaintiff defendant excepted and appeals. Affirmed.

Where land was granted in trust to one for life, remainder to his children, a provision that no partition should be made until the youngest child became 21 is invalid as a restraint upon alienation, if considered as preventing the sale of the trust property for reinvestment.

This is a controversy submitted without action for the purpose of determining the validity of the title to real estate contracted to be purchased from the plaintiff by the defendant. It is admitted that the title was good in Andrew J. Dotger and wife, and that if the proceeding in the superior court of Mecklenburg county, wherein an order of sale was made by Lyon, Judge, at January term, 1912 appointing the plaintiff a commissioner to sell the land described in the complaint, and the subsequent order in regard to the particular sale in controversy were obtained is valid, then the title offered defendant by the plaintiff is good and indefeasible.

On April 26, 1899, A. J. Dotger, who was then the owner of the lands in controversy, and his wife executed the following paper writing, which was duly probated and registered:

"Whereas I, Andrew J. Dotger, of the aforesaid county and state, am the owner in fee simple of a certain tract of land lying and being in the county of Mecklenburg, state of North Carolina, near the city of Charlotte, containing about 89 acres, and described in a deed made to me by McD. Arledge and wife, which is duly registered in the office of the register of deeds for said county of Mecklenburg, in Book 104, page 122, and in a deed made to me by J. H. and W. R. Wearn, which deed is also duly registered in the office of said register of deeds, in Book 110, page 306, to which two deeds reference is made for a more perfect description of the said tract of land. And whereas, because of my love and affection for my brother, Henry C. Dotger and his wife, Bertha M., and their children, I desire that they shall have the use and benefit of the said tract of land. Now, in consideration of my love and affection for them, and of ten dollars to me in hand paid, I, Andrew J. Dotger, do covenant with the said Henry C. Dotger and his wife Bertha M. and their children as follows:

"(1) That the said Henry C. Dotger and his wife, Bertha M., and the survivor of them, may occupy and use the said plantation as a home so long as they, or the survivor of them, may elect to live upon the said place and use and occupy it as a home for themselves and their children, and that while they, or the survivor of them, may use and occupy the said plantation as aforesaid, they shall have and hold the same free and clear from any demand for rent on the part of myself, my heirs or assigns; they or the survivor of them paying, when due, all taxes and assessments which may be levied against the said plantation.

"(2) Upon the death of Henry C. Dotger and his wife, Bertha M., I covenant and agree that the title to the said plantation shall vest in fee simple in the children of the said Henry C. Dotger and his wife, Bertha M. Dotger, that may then be living, and in the children of any one of their children who may then have died leaving issue, such grandchildren, if any there be, to take per stirpes and not per capita; provided, however, that no partition of said land nor any sale thereof shall be made by any of the issue of the said Henry C. Dotger and his wife, Bertha M. Dotger, until the youngest child shall arrive at the age of twenty-one years, that date being fixed as the time when partition is to be made.

"(3) Upon my death, if that should occur before the demise of my said brother and his wife, I covenant and agree that the title to the said land shall vest in the executor of my will to be held by him upon the same trusts and conditions as I hold the said land under this instrument.

"(4) And in the event of the death of my executor before the death of my brother and his wife, then the title to the said land shall vest in my heirs at law, to be held by them upon the trusts and conditions herein set out.

"(5) If my said brother and his wife shall elect not to use and occupy the said plantation as a home, and shall signify such election by removing from it or shall attempt to incumber it or to assign or mortgage any right which they acquire hereunder, then and in that event the possession and control of the said plantation shall be reserved by me or by my successor or successors hereunder, and I or they shall collect the rents and profits thereof, and having first paid all taxes and assessments due thereon, and all expenses incurred in the administration of this trust, shall apply the balance of such rents to the support and maintenance of the said family, as the trustees may see fit to do, and upon the death of both the said Henry C. Dotger and his wife, Bertha M. Dotger, the possession and control of the said plantation shall immediately pass over to the descendants of the said Henry C. Dotger and his wife, Bertha M. Dotger, as above provided, who shall then become, by the operation of this instrument, invested with the fee-simple title of the said land, subject only to the limitation aforesaid. And Clara L. Dotger, wife of the said Andrew J. Dotger, joins her husband in the execution of this deed in token of her renunciation of all right of dower in the land above described.

"In witness whereof the said Andrew J. Dotger and wife, Clara L. Dotger, have hereto set their hands and seals, this 26th day of April, 1899.

"Andrew J. Dotger. [Seal.]

"Clara L. Dotger. [Seal.]"

On November 16, 1911, an action was commenced in the superior court of Mecklenburg county for a sale of said lands or parts thereof, subject to confirmation by the court, and to reinvest the proceeds of sale.

Henry C. Dotger and wife, all their children, Freda L. Burch, Anna D. Kirby, Bertha C. McLaughlin, F. W. Dotger, and Dorothy F Dotger, all their grandchildren, Florence E. Burch and Caroline Kirby, the Fidelity Trust Company, executor of A. J. Dotger, deceased, Annie C. New, Dora Warner, Elizabeth Wolf, Claire Richards, and Herbert L. Richards, who with the plaintiffs are all the heirs of A. J. Dotger, were parties to said action, and the plaintiffs alleged, among other things, in their complaint: "That the plaintiffs, Henry C. Dotger and wife, Bertha M. Dotger, have, since the execution of said deed, occupied and used the lands therein described as a home, and have in every respect complied with all the terms and conditions of said deed. That at the time said deed was executed the lands therein described were of small value and were suitable only for agricultural purposes. That the city of Charlotte has grown and extended in area until the greater part of said lands are now situated within said city and all of said lands have become very desirable for residential purposes. That said lands have so increased in value that they are now worth the sum of $100,000, and are assessed for taxation at the sum of $25,000, which assessment will likely be increased at the next appraisal of property for taxation. That said lands are likely to be subjected at any time to assessment for purposes of public improvement. That, on account of the high taxes levied against said lands and the assessments to which they may at any time be subjected, the said lands have not only ceased to be profitable for farming and trucking purposes, but have actually become burdensome to plaintiffs. That the interest of all parties concerned would be materially enhanced if said lands or parts thereof were sold and the proceeds reinvested in other estate of a profit-bearing character or in the improvement of other real estate or such part of said lands as may not be sold; such newly acquired or improved real estate to be held upon...