Cameron v. Hicks

• Decision Date: 03 April 1906
• Citation: 53 S.E. 728,141 N.C. 21
• Parties: CAMERON et al. v. HICKS et al.
• Court: North Carolina Supreme Court

53 S.E. 728

141 N.C. 21

CAMERON et al. v. HICKS et al.

Supreme Court of North Carolina

April 3, 1906

Appeal from Superior Court, Wayne County; Ward, Judge.

Action by D. A. Cameron and others against E. F. Hicks and others. From a judgment in favor of plaintiffs, defendants appeal. Reversed.

On the death of a trustee having a legal title to land, the title passes to the heirs as joint tenants.

Edmund Coor, on the 3d day of May, 1870, executed to E. R. Cox trustee and his heirs a deed conveying the land in controversy "to the sole and separate use of Amanda M Cameron, wife of John Cameron, during her life, and after her death to convey the same to such children and their heirs as she, the said Amanda, may leave her surviving, and to the issue and their heirs of such as may be dead, such issue to represent their ancestors and take such part as he or she would have taken if living, and if during the life of the said Amanda she should desire any or all of the said property conveyed in fee or otherwise to convey the same according to her wishes, she joining in said conveyance as if she were a feme sole, though her husband be living." Said deed was duly recorded in the office of the register of deeds of Wayne county. The said E. R. Cox, trustee, died June 18, 1875 leaving surviving certain children and grandchildren, all of whom were either infants or married women and so remained to the beginning of this action, August 11, 1902, except one daughter, Florence Virginia Cox, who became 21 years of age October 24, 1880, and was married to T. J. Newsome, December 9, 1880. On October 28, 1880, John Cameron and his wife, Amanda Cameron, executed a deed for the land in controversy to the defendant E. F. Hicks, sufficient in form to convey said lands in fee simple with full covenants of warranty. There was evidence tending to show that the said Hicks went into possession of said land, described in said deed, immediately after its execution, and that he and the other defendants claiming under him have remained in possession until the beginning of this action. The deed from Cameron and wife to Hicks recited a consideration of $600. A. F. Cameron died June, 1881. His widow Amanda died March, 1901, leaving surviving six children, all of whom, with the exception of A. F. Cameron and J. D. Cameron, the last of whom died since the beginning of this action, are parties plaintiff herein, together with the children of J. D. Cameron. That all the living children and the children of such as are dead of E. R. Cox, trustee, are parties defendant herein, together with the grantees of E. F. Hicks, to whom portions of the said lands were conveyed as aforesaid. The court charged the jury that if they believed the evidence, they should answer the issues for the plaintiffs, to wit: "That they were each entitled to one-sixth undivided interest of the land in controversy." Defendants excepted, and assigned the said instruction as error. From a judgment upon the verdict, defendants appealed.

W. C. Munroe, for appellants.

Dortch & Barham, W. S. O'B. Robinson, and Aycock & Daniels, for appellees.

CONNOR J. (after stating the case).

The record, with the exhaustive and well-considered briefs in this appeal, clearly present the questions upon which the rights of the parties depend.

The plaintiffs suggest that it is not necessary for them to combat the principle decided in Kirby v. Boyette, 118 N.C. 244, 24 S.E. 18. They say that the cases may be distinguished. In Kirby's Case the declaration of the trust was for the separate use of the married woman and her heirs, whereas here it is for "the sole and separate use of Mrs. Cameron for, and during her natural life, and at her death to convey to her children, then living, and the issue of such as were dead." This language, it is insisted, brings the case directly within the principle announced in Swann v. Myers, 75 N.C. 585. Chief Justice Pearson was clearly of the opinion, in that case, that "a married woman owning an estate for life, in a trust estate, has the jus disponendi, unless there be a restraint upon the power of alienation." This, he says, "is laid down in all of the books." No authorities are cited. The trust in that case was for "the separate use and behalf" of Mrs. Swann for her life and then over. It is difficult to reconcile this language with that of Manly, J., in Knox v. Jordan, 58 N.C. 175. In that case the English rule is discussed, the cases decided by this court reviewed, resulting in the conclusion that the feme covert may alien or incumber her separate estate in execution of powers conferred upon her by the terms of the deed, and if not restricted by the terms may, under the authority of Frazier v. Brownlow, 38 N.C. 237, 42 Am. Dec. 165, charge the income or profits, etc. The question in regard to the wife's power to deal with her separate estate was before the court in Withers v. Sparrow, 66 N.C. 129, where it was held that she could, "with the assent of the trustee," charge it. Light is thrown upon the language of Pearson, C.J., in Swann v. Myers by referring to his dissenting opinion in Harris v. Harris, 42 N.C. 120, 53 Am. Dec. 393, wherein it was held that a feme covert entitled to a separate personal estate, in the absence of any restraint in the deed, could dispose of it as a feme sole, whether there was or was not a trustee. In that case a slave had been conveyed to a trustee for the separate use of a married woman during her life, with remainder over, etc. The court, by Ruffin, C.J., held that, in the absence of any restraint upon her right of alienation, she could sell the slave. The decision is put upon the English authorities, citing, also, Newlin v. Freeman, 39 N.C. 312, and Dick v. Pitchford, 21 N.C. 480. Judge Pearson vigorously dissented from the doctrine of "implied power" in the wife, etc. He says: "As the feme had only a separate use for life in a negro woman *** of no annual profit, and as, for her maintenance, she had a right to dispose of the profits, and a life estate is only, in fact, a right to the profits, I should have been willing to put this case upon the ground that, in disposing of her life estate, she disposed of the profits only." He sets forth at length his dissent from the doctrine that, in the absence of any express power to sell the separate estate, the wife may do so as a feme sole. Ruffin, J., in Hardy v. Holly, 84 N.C. 661, referring to the question of division of opinion in Harris v. Harris, says: "When the question next arose in the case of Knox v. Jordan, the court, as then constituted, without division, and without any sort of reservation, repudiated the doctrine of the English courts, and adopted that which prevailed in most of the courts of the states; and whether this was wisely done or not, that case has been too often approved and doubtless too often acted upon in matters intimately connected with the interest and comfort of families to admit of its correctness being now called into question." Although the learned judge writing the opinion gave to the question, and the authorities, as was his custom, a most careful investigation, the case of Swann v. Myers is not cited, nor do we find that the learned counsel who argued the case for the plaintiff, in their exhaustive brief called it to the attention of the court. In Hardy v. Holly, supra, a mode was prescribed in the deed for the disposition of the property.

We have carefully and anxiously examined the authorities, and are unable to find any recognition in those courts, which reject the English doctrine, of a distinction between the power of a feme covert to convey her "equitable life estate" and her equitable estate in fee. Prof. Pomeroy says that the American courts, in regard to this question, may be divided into two classes. "In the first, the courts have adopted the principle of the English doctrine. They regard the wife's jus disponendi as resulting from the fact of an equitable estate over which she is, partially at least, a feme sole, and not as resulting from the permissive provisions of the instrument creating such separate estate. It follows, therefore, when the instrument creating the separate estate imposes no express restrictions, that the wife has a general power of disposing of or charging it, even though no such authority is, in terms. conferred. This power of disposition, however, does not generally extend to the corpus of the land for her separate use in fee; it is confined to personal property, the rents and profits of the land, and perhaps to her life estate in lands. In the states composing the second class, the courts have widely departed from the principle of the English doctrine. They regard the wife's power over her separate estate as resulting, not from the existence of an equitable separate estate itself but from the permissive provisions of the instrument creating such estate. They have accordingly adopted the general rule that a married woman has only those powers of disposing of or charging her separate property which are expressly, or by necessary implication, conferred upon her by the instrument conveying the property or creating the trust, and in determining the extent of these powers, the terms of the instrument are to be strictly construed." 3 Pom. Eq. (3d Ed.) 1105; Bispham, Eq. § 103. Both these writers place North Carolina in the second class. The dissenting opinion of Judge Pearson in Harris v. Harris, supra, strongly maintains this doctrine. As we have seen, this dissenting opinion was adopted in Knox v. Jordan, and it is upon that decision the doctrine of Hardy v. Holly is based. In none of the cases following Hardy v. Holly is there any reference to Swann v. Myers or suggestion that, as to the equitable life estate, the feme covert may convey...