Dillon v. Monroe Mills Co.

• Decision Date: 31 May 1924
• Docket Number: 464-H.
• Citation: 123 S.E. 89,187 N.C. 812
• Parties: DILLON v. MONROE MILLS CO.
• Court: North Carolina Supreme Court

123 S.E. 89

187 N.C. 812

DILLON v. MONROE MILLS CO.

No. 464-H.

Supreme Court of North Carolina

May 31, 1924

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

Controversy without action, by T. P. Dillon, as receiver for the Bear Skin Cotton Mills, against the Monroe Mills Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Interest of children, in a devise of real property to their father, in trust for self and family, with power to make advancements to children, became vested on their father's death, if not before.

From the facts properly presented, it appears that, the Bear Skin Cotton Mills having become involved, an action was instituted to liquidate and distribute its assets in accordance with law, in which said action plaintiff, T. P. Dillon, was duly appointed receiver with authority and directions to sell the plant, etc.

Acting under said powers, the plaintiff has contracted to sell said plant--mills and some outlying property--to defendant at the price of $122,350, stipulating for the making of a good title, which said bid was duly reported to the court and confirmed at May term, 1924, and title ordered to be made. Defendant company, admitting the contract, resist further compliance on the ground that the title offered is defective.

The court being of opinion with the plaintiff, entered judgment that defendants comply with the contract, from which said judgment defendant excepts and appeals.

C. W Tillett, Jr., of Charlotte, for appellant.

John C Sikes, of Monroe, for appellee.

HOKE J.

The property in question was owned by H. M. Houston, who died in 1901, having made disposition of the same by his last will and testament in terms as follows:

"It is my will that all the remainder or residue of my property of whatsoever nature or kind it may consist shall be divided into three equal parts by my children, R. V. Houston, Ellen E. Fitzgerald and Martha M. Turner, if they can agree or if they prefer it to be done by others or if they cannot agree on a division then they shall select three disinterested and intelligent freeholders who shall divide the said property as near as possible into three equal parts; one of which said parts I devise and bequeath to Martha M. Turner in trust for herself and children, R. F. Turner, Daisy Youngblood, Charlie Turner and Callie Turner, using so much thereof during her natural life as shall be necessary for her comfortable maintenance and support and the support and education of her children above named, and my daughter Martha M. Turner is authorized to give R. F. Turner, Daisy Youngblood, Charlie Turner and Callie Turner, as her judgment may dictate such part or parts of the property devised and bequeathed in this item as will be for the interests and advancement of such child, provided the sums given shall not be more than the share to which the one advanced shall be entitled. If any of said children, R. F. Turner, Daisy Youngblood, Charlie Turner or Callie Turner should die without children, the share of such one shall be given to the survivors or survivor of them and if any of said children should die leaving children then the children of the deceased child shall be entitled to and receive such part of my estate herein devised or bequeathed as their parents would have been entitled to if living.

I also devise and bequeath of R. V. Houston in trust one-third of the property divided by my children or freeholders as hereinbefore directed to have and to hold the same for the use and benefit of himself and children so that he shall use the rents, issues, profits and interests as they may be needed for the proper maintenance of himself and family and for the purpose of advancing his children and starting them in life, he is authorized and empowered to advance and deliver to any or all of his children such money or property as he may deem proper for their best interest; provided, in the advancement or delivery of money or property to any one of them he shall make an equitable and just division or distribution among his children so that there shall be no undue preference except that he may discriminate as to the time of making the advancements and if any of R. V. Houston's children shall die leaving children, the child or children of such a deceased child or children shall represent the deceased child or children and be entitled to such part of the property herein devised and bequeathed as such deceased child or children would have been entitled to receive if living."

Pursuant to the directions in this item of the will, the property embraced therein, consisting of both real and personal estate, choses in action, etc., was in 1902 divided by the three named children of the testator, and a written deed of partition of the same was formally executed and signed by the three and by L. A. W. Turner, the husband of M. M. Turner, and the land in controversy was embraced in the portion assigned to R. V. Houston, the son, who was also executor of the will.

No privy examination of M. M. Turner was taken as to the execution of this instrument of partition, but it appears that R. V. Houston and his children and assignees have been in the open and notorious possession of the property assigned to him, asserting ownership since the date of said partition.

The particular property in controversy here consisted of a tract of 3.05 acres, and was embraced in a deed made in December 1905, by R. V. Houston, commissioner, conveying same to the Monroe Cotton Mills, the deed purporting to be made under a decree of the superior court for purposes of reinvestment, and this interest so conveyed has been passed by mesne conveyances to the Bear Skin Cotton Mills, and is the title offered by plaintiff as to that portion of the land bargained to defendant; also a tract of 35 acres, part of the land assigned to R. V. Houston in...