Leroy v. City Council of Charleston

• Decision Date: 02 October 1883
• Citation: 20 S.C. 71
• Parties: LEROY v. CITY COUNCIL OF CHARLESTON.
• Court: South Carolina Supreme Court

20 S.C. 71

LEROY

v.CITY COUNCIL OF CHARLESTON.

Supreme Court of South Carolina.

Oct. 2d, 1883.

1. A lot of land was devised to remain in the hands of the executors until they should settle and assure the same to trustees to receive the rents, &c., and pay the same to the sole and separate use of E. during her life, and then to transfer the same to such children of E., or the issue of such deceased child as E. should leave surviving her, the issue of deceased children to represent their parents; and if she should have neither children, nor their issue living at her death, then to such person or persons as by the laws of this State shall be entitled to distribution of her estate. Held, that E. had a life-interest, and that the remainder over was contingent and not vested.

2. The executors having accordingly conveyed this land to a trustee in trust for the uses and purposes directed by the will, the legal title was in the trustee, and after his death, in his heir-at-law.

3. This land having been sold under proceedings to which E. and her children were parties, but not the living grandchildren of E., nor the heir-at-law of the trustee, held, on rule to show cause, that the purchaser was not bound to comply.

Before COTHRAN, J., Charleston, April, 1883.

The opinion fully states the case.

Messrs. Hayne & Ficken, for appellant.

Mr. J. Barrett Cohen, contra.

The opinion of the court was delivered by

MR. CHIEF JUSTICE SIMPSON.

At the sale of certain real estate, situated in the city of Charleston, under a consent decree pronounced by Judge Fraser in the above-entitled cause, Peter Tecklenburg became the purchaser at the price of $1,280, who failing to comply, a rule to show cause was issued against him by Judge Cothran, presiding, on March 9th, 1883. To this rule the said Tecklenburg made return, admitting that he had refused to comply, and gave as a reason, that he was advised by counsel that the title offered was not good and marketable. In support of this answer he submitted the following statements: “1. That the legal estate to said land is vested in the trustee, Francis Dupont, his successor or his heir-at-law; and neither the said Francis Dupont, or, if he be dead, his heir-at-law, nor any substituted trustee is a party to the proceeding under which the sale was made. 2. That there are in esse remaindermen, the grandchildren of the said Emma Leroy, who are not parties to the said proceedings. 3. That the purpose of said proceeding is not to effect a change of investment, but to destroy the trust estate, and scatter the corpus thereof. 4. That it is sought to apply one-half of the proceeds of sale in liquidation of a large arrearage of taxes, which taxes, under the law, are exclusively the debt of the life-tenant, and he prayed that the rule be dismissed with costs.

On hearing the rule and answer, Judge Cothran ordered that it be made absolute; and further, that the proceeds of the sale, after payment of costs and expenses, be retained, subject to the further order of the court modifying the previous order of sale to that extent. Tecklenburg has appealed, assigning error, substantially, on the grounds stated in his answer to the rule.

The main question involved is, whether Tecklenburg could obtain a complete title under his purchase; whether a deed from the officer of the court, under the circumstances, could convey such a title. This is denied by the respondent to the rule, because, as he alleges, all persons interested in the land were not made parties to the proceeding under which it was sold. If this position is correct, the conclusion urged by the appellant would follow, because it is well settled, that to divest one of his interest in property of any kind by the judgment of a court, he must be a party to the proceeding, either in person or by a representative, otherwise the judgment is a nullity as to him. The precise point to be considered, then, is, whether all necessary parties were before the court when this consent decree was rendered by Judge Fraser.

The land originally belonged to Mrs. Heloise Boudo, who died in 1837, leaving of force her last will and testament, under which the said land, with the balance of her estate, was devised and bequeathed to the parties therein named upon certain terms and conditions. To ascertain the rights of the parties it will be necessary to consider the provisions of this will, and the codicil thereto. One Charles Edmondston, was the executor, and the testatrix directed that he should duly settle and assure to a competent trustee one moiety of her estate to certain uses, that is to say, in trust to receive the rents, issues, income and profits thereof during the natural lives of Narcisse Leroy and Emma Leroy, his wife, (a daughter of testatrix,) and from time to time to pay the same to the said Emma and her assigns, for her sole and separate use, &c. &c. So that the said Emma Leroy shall not sell, mortgage, charge, or otherwise dispose of the same in the way of anticipation. And if the said Emma Leroy should survive her husband, then in trust to convey the said moiety to the said Emma, her heirs and assigns forever.

By a codicil, the testatrix afterwards changed somewhat the terms of this bequest as follows, to wit: She directed that the said one moiety should be settled and assured to the sole and separate use of the said Emma in the manner and upon the conditions mentioned in her will, but subject to the alterations made in the codicil. She then revokes so much of her will as directed the moiety to go to Emma absolutely, in the event that she survived her husband, and directs that said moiety shall be settled to the sole and separate use of the said Emma, notwithstanding her coverture, free from the direction, control or interference, debts or contracts of her present or any future husband, so that she shall not sell, mortgage, charge or otherwise dispose of her interest in the same by anticipation. And that the said interest shall be for the term of her natural life, and no longer. And after the death of the said Emma, then said moiety to be equally divided among such children as she shall leave surviving her, the issue of deceased children to represent their parents, and take shares accordingly. And if the said Emma should leave no children nor their issue living at her death, then said moiety was to go to such persons then living as by the laws of the State shall at that time be entitled to distribution thereof.

In April, 1841, Charles Edmondston, who had qualified as executor, conveyed by deed, reciting therein the will and codicil, to one Francis Dupont, one moiety of the lot of land now in controversy, to have and to hold the same unto him, his heirs and assigns forever, in trust nevertheless to have and to hold the same and to take and receive the rents, issues and profits of the same and every part thereof, &c., to the sole use of the said Emma, notwithstanding her coverture, free from the direction, control or debts of her husband, &c. And from and after her death, then the said moiety shall be equally divided among such children of the said Emma, or the issue of such deceased children, as she shall leave surviving her, the issue of such deceased children to represent their parents, &c. And if the said Emma shall leave neither children nor their issue living at her death, then to such person or persons as by the laws of the State shall then be entitled to distribution of her estate.

F. Dupont accepted the trust. He has, however, been dead for some years. Narcisse Leroy, the husband of Emma, is also dead. The plaintiff, Emma Leroy, is the Emma mentioned in the will, and her children are all parties plaintiff with her. Some of these children have children, none of whom are parties. No trustee has been substituted for Dupont, nor has his...