King v. Rhew
| Decision Date | 28 April 1891 |
| Citation | 13 S.E. 174,108 N.C. 696 |
| Parties | King et al. v. Rhew. |
| Court | North Carolina Supreme Court |
Appeal from superior court, New Hanover county; Graves, Judge.
Where certain children had but a contingent remainder in a trust estate, the legal title to the fee of which vested in the trustee, and his estate was barred, that of the remaindermen was also barred.
D. L Russel and Ricaud & Weill, for appellants.
Junius Davis, for appellee.
The land in question was conveyed on the 25th of April, 1863, to one "Robert Wood, Jr., and his heirs and assigns," in trust "for the sole and separate use, occupation, and enjoyment of Charlotte King during her natural life, and at her death to be equally divided between any children she may leave her surviving, born of her intermarriage with her present husband, share and share alike, and to be in no wise liable to be sold or taken for the debts of her said husband." Charlotte King died in 1889, and the plaintiffs are the only children born of her intermarriage with Isaac W. King, her said husband. The said King in 1869 conveyed the land for a valuable consideration to one Ann Eliza Orrell, and the defendant claims by mesne conveyances from her. Charlotte King executed the deed with her husband but her name does not appear in it anywhere except in the attestation clause, nor does the deed refer in any way to the trust-estate of Wood. It is admitted that the defendant "has been in the actual and open possession of the said land since the date (16th September, 1880) of the deed to him, [by one Chadwick,] claiming adversely under said deed and [that] such possession was adverse to the plaintiffs unless in law it was not adverse."
The first question to be considered is whether the deed executed by King and wife (the trustee being no party thereto) conveyed any interest of the wife in the said land, so that the trustee would have been prevented in equity from asserting his legal title during the nine years' occupancy of the defendant. In Bank v. Rice, 4 How. 241, it was said that, See, also, 1 Bish. Mar. Wom. § 594, note; Malone, Real Prop. 528, 703. In Gray v. Mathis, 7 Jones, (N. C.) 502, several of the foregoing cases are cited, and their doctrine clearly recognized and approved. These authorities abundantly show that Mrs. King was not a party to the deed signed by her, and that it was inefficacious to pass her estate in the said land. Neither did her husband have any interest jure mariti which he could have conveyed, as the property was vested in the trustee for the "sole and separate use" of his wife. Heathman v. Hall, 3 Ired. Eq. 420; 2 Lewin, Trusts, 753-756; 2 Perry, Trusts, § 648. Even had there been no trust, he could not, under the act of 1848, (Rev. Code, c. 56,) have conveyed his interest unless the wife had joined in the conveyance, and this we have seen she failed to do. The deed then can only be regarded as that of the husband, and, as he had no interest which he could have conveyed, the trustee could have maintained an action at any time against the defendant for the possession of the property. The defendant being thus exposed to an action on the part of the trustee, (Swann v. Myers, 75 N.C. 585,) and having been in the continuous possession for over seven years under his deed from Chadwick, (which was color of title,) and it being admitted that his possession was actually adverse, it must necessarily follow that the trustee's estate is barred. It is suggested, however, though not seriously pressed, that the possession of the defendant was permissive only; but there is no evidence of this, and we have but the naked deed of the husband and the admitted adverse possession of the defendant. Indeed, there is nothing in the case to show that Ann Eliza Orrell ever had possession of the land; nor does it appear that the defendant ever had any notice of the deed to Wood, the trustee; not does he claim under it; nor is it a part of his title. The only evidence as to the possession is the admitted fact that Rhew has had possession since 1880, claiming adversely to all persons; and, even had he actual or constructive notice of the trust, the estate which he acquired by disseisin would not be subject to it, as it is well settled that "a disseisor is not an assign of the trustee, either in the per or post, for he does not claim through or under the trustee, but holds by a wrongful title of his own, and adversely to the trust." 1 Lewin, Trusts, 250; 1 Perry, Trusts, §§ 341-346; Benzein v. Lenoir, 1 Dev. Eq. 225. This seems to be conceded by counsel. It is not insisted that the trustee would have been prevented from suing because of any equitable estoppel against Mrs. King; but we will remark that, although it had appeared that her husband had represented that the conveyance was in proper form, and she had simply remained silent while he received the purchase money, she would not have been estopped. Clayton v. Rose, 87 N.C. 110. Neither would the consideration (other lands conveyed to her) have had this effect, whatever equitable remedy, if any, Mrs. Orrell might have had as to the land conveyed by her while it remained in the hands of Mrs. King. Scott v. Battle, 85 N.C. 184; Clayton v. Rose, supra. The estate of the trustee being barred, it is well settled that the cestuis que trustent are barred also. This principle is admirably stated by Smith, C.J., in Clayton v. Cagle, 97 N.C. 301, 1 S.E. Rep. 523: See, also, Herndon v. Pratt, 6 Jones, Eq. 327; Wellborn v. Finley, 7 Jones, (N. C.) 233; Clayton v. Rose, and Swann v. Myers, supra.
2. It is very earnestly insisted, however, that for the purposes of the trust it was unnecessary that the trustee should have taken any greater than a life-estate, and therefore the remainder-men should not be barred. The principle has very generally been applied in cases of devise where it is held that there is more room for construction to ascertain and carry into effect the intention of the testator; and accordingly the estate of the trustee has in some cases been enlarged or restricted to conform to the purposes of the trust. The rule, however, does not seem to be recognized in this state as applicable to limitations by deed. Evans v King, 3 Jones, Eq. 387. But conceding to the fullest extent, for the purposes of the discussion, that in such cases the estate of the trustee will be "abridged or cut down" to a life-estate where the statute of uses would generally execute the ulterior limitations, or, as expressed by the counsel, where the legal estate is unnecessary to...
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