Lee v. Oates

• Decision Date: 24 May 1916
• Docket Number: 450.
• Parties: LEE v. OATES.
• Court: North Carolina Supreme Court

88 S.E. 889

171 N.C. 717

LEE v. OATES.

No. 450.

Supreme Court of North Carolina

May 24, 1916

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

Controversy by B. R. Lee against John B. Oates. From a judgment for plaintiff, defendant appeals. Affirmed.

Where the trust created by a deed has become passive and the statute has executed the use, the trustee is not a necessary party to a suit to reinvest the land upon the uses declared by the deed.

The agreed facts are substantially as follows: Plaintiff contracted to convey to defendant an indefeasible, fee-simple title to certain land in Mecklenburg county, for which defendant contracted to pay plaintiff the sum of $7,000. Plaintiff thereupon executed and tendered to defendant a deed, admitted to be in due and proper form, for the land in question, which defendant refused to accept, and refused to comply with his part of the contract, on the ground that plaintiff did not have, and his said deed did not convey, an indefeasible fee-simple title to the said land; and this controversy without action was instituted for the purpose of determining the respective rights of the parties. The special facts relative to plaintiff's title are as follows: In 1880 Nancy S. Smith owned certain land in Mecklenburg county, and by deed which appears in the record on page 11, marked "Exhibit B," she conveyed the property to one B. R Smith and his heirs, to be held in trust for the purposes and upon the limitations therein particularly set forth. After the death of Nancy S. Smith, and under authority of Revisal § 1590, this land was sold, and the proceeds reinvested in the land which the plaintiff contracted to convey to the defendant, and which was conveyed, by B. V. Dinkins and husband, to B. R. Smith, and his heirs and assigns, to be held in trust for the purposes and upon the limitations set forth in the deed. It is agreed that B. V. Dinkins and husband had and conveyed an indefeasible, fee-simple title to the said land. Of the persons named in the original or Smith deed, the following are dead: B. R. Smith, trustee; Junius M. Lee, who was the husband of Elizabeth Jane Lee; Anna B. Lee, who died unmarried and without issue; W. Bernard Smith, who died without issue; W. Mac. Smith, the father of Lillian and W. Bernard Smith; and Carrie E. Smith, his wife. The following are still living: Elizabeth Jane Lee, B. Rush Lee, and Lillian A. Smith (now Lillian A. Springs), having married R. C. Springs. The heirs of B. R. Smith are Garnet and Eloise Smith. The heirs of Nancy S. Smith, the grantor in the original deed, are many, and scattered. At the time of the execution of the original or Smith deed, plaintiff, B. R. Lee, was six years of age. This does not appear in the case agreed, but is a fact, and is stated by defendant at plaintiff's request. The date of the reinvestment proceeding was March, 1905, and this proceeding is still formally open and pending upon the court records. After the death of B. R. Smith, the trustee in the original deed, an order was made in this reinvestment proceeding appointing W. D. Wilkinson as trustee in the place of B. R. Smith, trustee; but no notice of this order or appointment was served upon any of the parties to the reinvestment proceeding, nor upon any of the heirs at law of B. R. Smith, the original trustee, who were not parties to this proceeding; nor were the heirs at law of Nancy S. Smith, the original grantor, notified of this proceeding. The limitation in the original deed reads as follows:

Mrs. Nancy S. Smith on April 6, 1880, for one dollar and natural love and affection bargained, sold and conveyed to B. R. Smith (her son) his heirs and assigns the land described in the deed, in special trust for the sole and separate use and benefit of Elizabeth Jane Lee during her life, free from the debts and control of her husband, Junius M. Lee, and after her death to the use of the said Anna B. Lee and B. Rush Lee, their heirs and assigns forever, and in the event of the death of either the said Anna B. Lee or B. Rush Lee without issue, then to the use of the survivor and his or her heirs forever, and in the event of the death of both of the said Anna B. Lee and B. Rush Lee without issue then to the use of the said Lillian A. Smith and W. Bernard Smith and their heirs, and in the event of the death of either the said Lillian A. or W. Bernard Smith without issue then to the use of the survivor of them and his or her heirs, and in the event of the death of them both in the lifetime of their father then to the use of Mrs. Carrie E. Smith during her life and (surviving her husband) widowhood, with remainder to the right heirs of the parties of the first part. Provided, and it is hereby expressly agreed, that the said Elizabeth Jane Lee shall not have the power to sell her said estate or the profits arising therefrom by anticipation or otherwise. And provided also, and it is hereby agreed and declared, that it shall and may be lawful to and for the said Nancy S. Smith, party of the first part, at any time during her natural life, by any writing or writings under her hand and seal, testified by two or more credible witnesses, or by her last will and testament in writing, so testified as aforesaid, to alter, change, revoke, annul, and make void, all and every the use and uses, estate and estates, hereby limited, appointed, and declared, and any other use or uses estate or estates thereof, to limit, appoint, and declare, as to her the said Nancy S. Smith shall seem meet.

Plaintiff has deeds in due form, executed by the respective parties, purporting to convey to him all interests of Elizabeth Jane Lee, life tenant, and of Lillian S. Springs, and her husband, which deeds contain full covenants of seisin, right to convey and warranty, further assurance, and against incumbrances. Plaintiff also has a deed from W. D. Wilkinson, trustee, conveying to him all of the title of the said Wilkinson. Plaintiff contends that his title to the land described in the contract and the deed tendered by him is good and indefeasible, upon the following grounds:

"(1) The deed of the life tenant is valid, and effectual to pass her interest to the plaintiff. (2) The deed of the contingent remainderman is valid. (3) The legal title is not outstanding. (4) The heirs of Nancy S. Smith do not have an outstanding reversionary interest. (5) The deed which the plaintiff has tendered is sufficient to convey to the defendant an indefeasible fee simple title to the land."

Defendant, on the contrary, says that the title is not good and indefeasible, and that plaintiff cannot comply with the contract on his part for the following reasons:

"(1) The deed of the life tenant is void, and ineffectual to pass her interest to plaintiff. (2) The deed of the contingent remainderman is not valid. (3) The legal title is still outstanding. (4) The heirs of Nancy S. Smith have an outstanding reversionary interest."

The court was of the opinion that the plaintiff is seised and possessed of a good and indefeasible title, and that the deed tendered by him is sufficient to convey the same to the defendant, and adjudged that the contract be specifically performed, and that defendant pay the amount of the purchase money and interest, and that plaintiff deliver the deed to him. There were other provisions in the decree to provide against a default. Defendant excepted and appealed.

Clarkson & Taliaferro, of Charlotte, for appellant.

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

WALKER, J. (after stating the facts as above).

The first objection to the title, which the plaintiff has offered by his deed, is that one of his grantors, Mrs. Elizabeth J. Lee, was by the deed of Mrs. Nancy S. Smith, the original source of title, forbidden to sell her life estate or the proceeds arising therefrom by anticipation or otherwise. There is such a provision in the deed, but, being a condition subsequent and one that is void as against public policy, she held her estate discharged of it. There is a conflict in the authorities, but this court has for many years consistently held that the doctrine as to restraints on alienation applies as well to estates for life as to estates in fee simple, and to equitable estates as well as to legal estates.

"A restraint on the alienation of an equitable estate is as much against public policy as is a restraint on the alienation of a legal estate. Certainly no one has ever shown a distinction." Gray's Restraints on the Alienation of Property (1895) p. 241.

This is a well-settled rule, as is shown clearly in our decisions, and the sound reasons for its adoption are fully stated. The question is so fully discussed in the comparatively recent case of Wool v. Fleetwood, 136 N.C. 460, 48 S.E. 785, 67 L. R. A. 444, that a bare reference to the other cases is all that is required to show that it has long been the accepted doctrine of this court. Dick v. Pitchford, 21 N.C. 480; Mebane v. Mebane, 39 N.C. 131, 44 Am. Dec. 102; School Com'rs v. Kesler, 67 N.C. 447; Pace v. Pace, 73 N.C. 119; Hardy v. Galloway, 111 N.C. 519, 15 S.E. 890, 32 Am. St. Rep. 828; Pritchard v. Bailey, 113 N.C. 521, 18 S.E. 668; Latimer v. Waddell, 119 N.C. 370, 26 S.E. 122, 3 L. R. A. (N. S.) 668; Christmas v. Winston, 152 N.C. 48, 67 S.E. 58, 27 L. R. A. (N. S.) 1084; Trust Co. v. Nicholson, 162 N.C. 257, 78 S.E. 152; 24 Am. & Eng. Enc. of Law, 870, and notes.

"The capricious regulations which individuals would fain impose on the enjoyment and disposal of property must yield to the fixed rules, which have been prescribed by the supreme power as essential to the useful existence of property." Dick v. Pitchford, supra.

We have simply followed the English rule. The recognized exception to the principle that...