Kirkman v. Holland

• Citation: 51 S.E. 856,139 N.C. 185
• Parties: KIRKMAN et al. v. HOLLAND et al.
• Decision Date: 03 October 1905
• Court: United States State Supreme Court of North Carolina

51 S.E. 856

139 N.C. 185

KIRKMAN et al. v. HOLLAND et al.

Supreme Court of North Carolina

October 3, 1905

Appeal from Superior Court, Craven County; W. R. Allen, Judge.

Action by Emeline Kirkman and others against J. B. Holland and another. From a judgment for defendants, plaintiffs appeal. Affirmed.

Where a deed to a trustee imposed on him the duty of conveying the legal title when directed by the beneficiary, and in default of such direction to deliver it up to the children she might leave surviving, the trust was not executed by the statute and the legal title remained in the trustee during the lifetime of the beneficiary, who did not direct a conveyance.

This is an action for the recovery of two lots in the city of Newbern. Plaintiff claimed under the following chain of title: Deed from Joseph Merkell to John Peter Merkell bearing date April 15, 1841, upon the following uses of trust, to wit: "In trust for the sole and separate use of Caroline M. Merkell, wife of the said Joseph Merkell during the life of the said Caroline Merkell, so that said real estate hereby granted shall not be liable or in any manner subject to the debts, contracts, or engagements of the said Joseph Merkell, and further to grant and convey said property, or any part thereof, to such person or persons, for such considerations, and for such interests and estates as the said Caroline M. Merkell shall by any writing under hand and seal, during her coverture, direct, limit, or appoint and upon the dissolution of the said marriage by the death of the said Caroline M. Merkell, and on her failure to make the appointment above mentioned in trust, to surrender and deliver up said property to such child or children of the said Joseph Merkell and Caroline M. Merkell, his wife, as may be living at her decease." By successive conveyances, the title to the said property was vested in R. A. Russell on the 4th day of August, 1855, upon the same trusts set forth in the deed of April 15, 1841. Caroline M. Merkell died on the 27th day of December, 1903. The plaintiff Emeline Kirkman is a daughter, and plaintiff Ella Moore is a granddaughter, of the said Caroline M. Merkell. The defendants claim title to the real estate in controversy under deed executed by T. G. Wall and wife, Janet, to Samuel Bishop during the year 1856. The said Janet Wall was a daughter of William Hollister. This deed recites that this lot had been contracted to be sold to Wm. Hollister. By mesne conveyances such title as Bishop acquired by said deed passed to and vested in the defendants. The defendants, and those under whom they claim by the said chain of title, have been in possession of the said property, under said deeds, claiming to own the same in fee simple, since the ______ day of ______, 1856. Plaintiffs and the trustees had no other notice of this claim than that which the law implies from actual possession and the registration of the deeds. The plaintiffs offered to show by R. A. Russell, the trustee and brother of Caroline Merkell, that he had knowledge of a contract entered into between Caroline Merkell and Joseph Merkell, under which the lot was turned over to William Hollister, a near relative of Janet Wall, who was soon in possession of said property. To this testimony the defendant objected. Objection sustained, and plaintiff excepted. Plaintiff also offered to show by said witness that from 1855, and up to the death of Caroline Merkell, his sister, he made no effort to recover the possession of the said property, because he was told by his said sister not to do so; that she had sold her life estate, but that her daughters would be entitled to the said property after her death. Defendants objected, objection sustained, and plaintiffs excepted. The defendants relied upon the statute of limitations to bar the action of the plaintiffs. Judgment was rendered for the defendants, and plaintiffs appealed.

W. D. McIver, for appellants.

W. W. Clark, for appellees.

CONNOR J. (after stating the facts).

The first question to be disposed of is the admissibility of the proposed testimony. In respect to the first question, we concur with his honor. Assuming the fact to be proven, which we must do for the purpose of passing upon the exception, we do not see how it could affect the right of the defendants.

They do not claim under William Hollister,...