John L. Roper Lumber Co v. Her-rington

• Decision Date: 01 March 1922
• Docket Number: (No. 67.)
• Citation: John L. Roper Lumber Co v. Her-rington, 183 N.C. 85, 110 S.E. 656 (N.C. 1922)
• Parties: JOHN L. ROPER LUMBER CO. v. HER-RINGTON et al.
• Court: North Carolina Supreme Court

110 S.E. 656

JOHN L. ROPER LUMBER CO.

v.

HER-RINGTON et al.

(No. 67.)

Supreme Court of North Carolina.

March 1. 1922.

Appeal from Superior Court, Washington County; Ferguson, Judge.

Action by the John L. Roper Lumber Company against Annie W. Herrington and others. From a judgment, plaintiff appeals. Modified and affirmed.

In 1882 H. J. Williams and wife executed a deed reciting in the premises and in the habendum a conveyance to Annie W. Herrington and Mary E. Lewis for their natural lives, "and at their death then to their children, reserving a life estate in said land for H. P. Lewis and his wife, Ella E. Lewis, " the parents of Annie W. Herrington and Mary Lewis. Following the description of the land is a provision that Annie W. Herrington should have and possess the eastern part of the land conveyed during her natural life, and at her death it should go to her children, and that Mary Lewis should have and possess the western part during her natural life, and at her death to her children if she should have any, but, if she should die leaving no children, then to Annie W. Herrington during her natural life, and at her death to her children. About 1896 this land was accordingly divided by Annie W. Herrington and Mary E. Lewis, and such division is recognized by the parties to this suit. The land described in the petition is the part which was allotted to Mary E. Lewis.

At the time the deed of H. J. Williams and wife was executed Annie W. Herrington was married and had children. Mary Lewis was not married. In 1895 Mary Lewis married W. P. Knowles, and in 1904 was the mother of two children, Ruth and Annie Knowles. These were the only two children born to Mary Lewis prior to 190S.

In 1904 a special proceeding was begun by W. P. Knowles, his wife (Mary Lewis), and Ruth Knowles and Annie Knowles, by their general guardian, for the purpose of selling the land, and an order was made by the clerk appointing a commissioner to make sale. This order was afterward approved by the judge. The sale was duly confirmed, the commissioner made a deed to the purchaser, and the purchaser on November 4, 1904, made a deed to the plaintiff. In 1908 a third child, William, and in 1912 a fourth, Robert, were born to Mary Lewis Knowles.

The petitioner instituted a proceeding to register its title under the Torrens Law. Robert Knowles and William Knowles, children born after the sale was made by order of court, filed an answer and denied petitioner's title. They assert that under the deed from H. J. Williams to Mary Lewis they take an interest in the lands claimed by the petitioner, and that the special proceeding under which the lands were sold in 1904 did not have the effect of divesting their interest in the land.

The contention of the defendants is that the children of Mary Lewis took a contingent remainder under the deed from H. J. Williams, and that the court could not sell their contingent interest, and that the purchaser at said sale did not acquire their interest. The proceeds derived from said sale are in the hands of W. P. Knowles. the father of the defendants, who asserts that he is holding the proceeds for the benefit of the two children who were in being at the time the land was sold under order of court.

The examiner of titles made report to which the petitioner filed exceptions. In the superior court the following issues were drafted:

"First. Is the petitioner the owner of the land described in the petition? Answer: Yes. The petitioner owns the interest of W. P. Knowles, Mary E. Knowles, Ruth Knowles, Annie Knowles, and E. L. Herrington and Annie W. Herrington, but is not the owner of the interest of William and Robert Knowles, and which they took under the deed from H. J. Williams, Book Y, page 35, nor of such children as may be hereafter born to Mary E. (Lewis) Knowles.

"Second. Were L. G. Roper, guardian, and S. B. Spruill, attorney, properly authorized to represent the minors and to execute the deed, as alleged? Answer: Yes."

After the jury had answered the second issue, the court answered the first as a matter of law.

His honor rendered judgment that the petitioner is the owner of such interest in the land as was conveyed to Annie W. Herrington and Mary E. Lewis and of such interest as Annie Knowles and Ruth Knowles acquired under the Williams deed, but that the petitioner does not own, and the commissioner's deed does not convey, the interest of William Knowles and Robert Knowles, who were born after the institution of thespecial proceeding, or the interest of any child that may be born hereafter to Mary Lewis Knowles.

Small, MacLean, Bragaw & Rodman, of Washington, N. C., for appellant.

ADAMS, J. His honor held as a conclusion of law that the commissioner's deed did not convey to the purchaser the interest of William Knowles and Robert Knowles, or the interest of any child that might thereafter be born to Mary Lewis Knowles, and directed a qualified affirmative answer to the first issue. The exceptions call in question the correctness of this ruling and of the judgment rendered on the verdict. The judgment was determined chiefly by the answer to the first issue; and the answer to the first issue was no doubt determined by his honor's interpretation of the Williams deed.

In the granting clause this deed purports to make conveyance to-Annie W. Herrington and Mary E. Lewis during their natural lives, and at their death to their children, reserving for H. P. Lewis and his wife a life estate. The habendum is substantially identical. When the deed was executed Mary Lewis was unmarried and had no children; and, while as to unborn members of a class the remainder is contingent until they are in esse, when they come into being the remainder immediately vests. The remainder to the children of Mary Lewis after her life estate therefore vested immediately upon the birth of the oldest child. Here the direct question is whether the vested remainder given the children is defeated by the clause which follows the description. That the intention of the parties—particularly the...