Dawson v. Wood

• Decision Date: 05 March 1919
• Docket Number: 220.
• Parties: DAWSON v. WOOD.
• Court: North Carolina Supreme Court

98 S.E. 459

177 N.C. 158

DAWSON v. WOOD.

No. 220.

Supreme Court of North Carolina

March 5, 1919

Appeal from Superior Court, Lenoir County; Allen, Judge.

Controversy without action by John G. Dawson, commissioner, against D. E Wood. From judgment for plaintiff, defendant appeals. Affirmed.

Plaintiff under a decree of the court, in a cause duly constituted, of Laura A. Miller et al. v. Julia B. Faulkner et al., and as commissioner in the cause, having contracted to sell the land, the subject-matter of said suit, to defendant, D. E Wood, at the price of $33,000, and the payment of certain assessments for paving, etc., which said sale was fully approved, etc., the said purchaser, on demand made, declines to take the property or comply with the terms of the bargain claiming that the commissioner is not in a position to make a valid title. On the case presented, the court, being of opinion that the title offered was a good one, entered judgment for recovery of purchase price and the delivery of the deed on payment of same or compliance with the terms of the decree. From this judgment, the defendant appealed.

Rouse & Rouse, of Kinston, for appellant.

Dawson, Manning & Wallace, of Kinston, for appellee.

HOKE J.

From the facts properly presented it appears:

That the real estate in question belonged to one Richard F. Green, who has died, making disposition of the same by his last will and testament, as follows:

"Item IV. I give and bequeath to my wife, Eliza B. Green, my house and lot in the town of Kinston, N. C., in which I now reside, to go with all my household and kitchen furniture and all other improvements thereto belonging, to have and to hold during her natural life and, at her death, to go to my daughter, Laura A. Green, to have and to hold during her natural life and, at her death, to her nearest blood relative."

(2) That the wife, Eliza B. Green, is dead, and Laura A. Miller, having married, is the Laura A. Green referred to in the aforesaid devise, and that Julia B. Faulkner and Laura A. Harding were, at the time of the proceedings instituted, under which the present sale was had, and are now, the nearest of kin of said Laura A. Miller, and the former has six children now living, one of whom is a minor, and the latter also has now living children and grandchildren, resident and nonresident, and most of whom are minors.

(3) That the present life tenant, Laura A. Miller, in May, 1918, instituted an action to sell said property for reinvestment, under section 1590 of the Revisal, making the present nearest blood relations, Julia B. Faulkner and Laura A. Harding, parties defendant, and, in same proceedings, it was made to appear, by averment and otherwise, that this was a desirable, valuable lot in the business section of Kinston, N. C., subject to the taxes and assessments usually imposed on such property. "That the lot yields very little income, and is burdensome. That the buildings situated upon it are very old, have become in a bad and dilapidated condition, which are yearly growing worse, to the end that the said structures will soon be valueless, and are, in fact, at this time in a damaging condition, and the income yielded by the said property does not exceed $200 per year. That on account of the condition of the title to the said lot of land as above set forth, no one feels justified in improving the structures situated upon said land, which consist only of a dwelling house and a small outhouse, nor do they feel justified in placing new buildings upon the said lot of land, to the end that the revenue from the said lot may be increased, for the reason that if any one should make expenditures in the improvement of the said lot it might, by reason of the condition of the said title, result in a loss to them of any amount which they might expend," and praying for a sale of same for reinvestment, provided as much as $30,000 could be obtained therefor, with a cash payment thereon of $5,000.

The next of kin having accepted service did not answer the averments of the petition showing the necessity of sale, and made no resistance to the application. It was thereupon adjudged that J. G. Dawson, as commissioner in the cause make inquiry as to the value, and obtain and submit bids for the property considered adequate and desirable; and it was furthermore adjudged, after due inquiry: That Y. T. Ormond be, and he was, appointed guardian ad litem in said action, "to represent in same, as contemplated by law, any persons under disabilities and any person not now in being or whose names and residences are not known, or who may, in any contingency, become interested in said land"; and, summons having been duly issued, said guardian voluntarily appeared in the cause, waiving service, etc., and accepting appointment as such guardian. That, at the January term, 1919, of superior court of Lenoir county, the said commissioner made his report, submitting that, after full advertisement and due inquiry, the present defendant, D. E. Wood, had bid for the property $33,000, of which $15,000 was to be paid in cash and the remainder with bond payable on or before 10 years, with interest and properly secured. The bid and security offered was set forth in the report, and the said bidder also agreed to pay eight-tenths of the amounts now due for paving assessments against the property aggregating $750.65. The commissioner further reported that the price offered was the reasonable worth of the land, that it was the best price possible to obtain for it, and that the interest of all the parties would be materially enhanced by a sale at the amount stated, and recommended that the sale be made on the terms proposed. And the guardian ad litem, appointed after due inquiry, answered under oath, and admitted that the price offered was fair and reasonable worth of the property; "that the interest of all the parties on said proceedings required that the land should be sold, and same would be greatly enhanced in value by the sale to D. E. Wood at the price and on the terms stipulated." It was further made to appear that heretofore, in 1913, this present plaintiff had instituted an action against the defendants, Julia B. Faulkner and Laura A. Harding, then and now the nearest of kin, seeking a sale of this property on allegation that she was absolute owner in fee under the terms of her father's will, and, if otherwise, asking for a sale for reinvestment under the statute. In that case, entitled Miller v. Harding, reported in 167 N.C. 53, 83 S.E. 25, there was judgment holding that plaintiff had only a life estate in the property, and that the right to a present sale had not been shown. In this jurisdiction and on the facts thus presented, the courts have not had the inherent power to decree a sale of property and pass a valid title to the purchaser, the remainder here being limited on a contingency that would prevent the ascertainment of the ultimate takers or any of them till the death of the life tenant. Hodges v. Lipscombe, 128 N.C. 57, 38 S.E. 281; Aydlett v. Pendleton, 111 N.C. 28, 16 S.E. 8, 32 Am. St. Rep. 776; Williams v. Hassell, 74 N.C. 434; Watson v. Watson, 56 N.C. 401. In other states, and generally, the power in question has been more broadly exercised. See Bolfil v. Fisher, 3 Rich. Eq. p. 1; Baylor's Lessee v. Dejarnette, 54 Va. (13 Grat.) 152; Ruggles v. Tyson, 104 Wis. 500, 79 N.W. 766, 81 N.W. 367, 48 L. R. A. 809, and like cases. And to remove the restrictions prevailing under our decisions and with a view of unfettering these estates to the end that the property might be more profitably employed, the General Assembly of 1903 (chapter 99; Pell's Revisal,§ 1590) passed a statute conferring on the courts the power to order a sale and transfer of the title in all cases where there was "a vested interest in real estate and a contingent remainder over to persons who are not in being, or when the contingency has not yet happened which shall...