Lowe v. Harris
| Decision Date | 05 May 1893 |
| Citation | 17 S.E. 539,112 N.C. 472 |
| Parties | LOWE et ux. v. HARRIS. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Wilkes county; McIver, Judge.
Ejectment by L. D. Lowe and Hattie Lowe, his wife, against James Harris. Defendant had judgment, and plaintiffs appeal.
In ejectment, defendant relied on an equitable title by purchase from plaintiff's ancestor, evidenced by a receipt in the following words: Held, that the prescription in the receipt is too indefinite to authorize the admission of parol evidence to locate the land.
L. D Lowe, for appellants.
W. W Barber, for appellee.
The extreme limit of liberality in sanctioning the admission of parol proof to explain ambiguous descriptions in deeds and contracts for the sale and conveyance of land was attained in Carson v. Ray, 7 Jones, (N. C.) 609, where the premises were described as "my house and lot in the town of Jefferson," and the plaintiff was permitted to show that the grantor had but one house and lot within the boundaries of that place. In discussing that case, and distinguishing it from Murdock v. Anderson, 4 Jones Eq. 77, Judge Battle, delivering the opinion of the court, took the ground that in connection with the designation of the town in which the lot was located, given in the deeds passed upon in both of them, (in the one case Hillsboro, and in the other Jefferson,) the description had been made more definite by use of the personal pronoun "my," so as to open the way for proof that the grantor had but one lot in that village, which he meant to refer to as the place of his residence. The contract under consideration is in the following words: As the location of the land is not fixed, directly or inferentially, within the state of North Carolina or within the United States, the receipt is still more vague than either of the instruments discussed by Judge Battle, and it may be assumed that no one will venture to maintain that it was not void for uncertainty before the passage of the act of 1891. Indeed, the case of Fortesque v. Crawford, 105 N.C. 29, 10 S.E. Rep. 910, is authority for holding that no right, title, or interest in any land passed to the defendant upon its signature or delivery to him, since the receipt relied on by the defendant was almost identical with that under consideration. The policy of the law in existence before that statute was enacted was to remove as far as possible the temptation to perjury by permitting parol proof to be used in aid of a defective description only where it pointed by its terms to some extrinsic evidence for explanation of its ambiguous meaning. Allen v. Chambers, 4 Ired. Eq. 125; Massey v. Belisle, 2 Ired. 170; Leigh v. Crump, 1 Ired. Eq. 299. The principle stated is fully conceded in Perry v. Scott, (N. C.) 14 S.E. Rep. 294, where, though the distinction drawn by Judge Battle between cases where the personal pronoun constitutes or does not form a part of the description is disapproved, the necessity for indicating the locality by some means is clearly recognized. The receipt being utterly ineffectual to transfer any interest whatever to the defendant in 1880, when it was delivered to him, both the legal and equitable estate in the land remained vested in Mrs. A. P. Calloway for life, with remainder in fee in her children. The legislature unquestionably had and has the power to modify or repeal the whole of the statute of frauds in so far as it applies to future contracts for the sale of land, but its authority to give the repealing statute a retroactive operation is as certainly restricted by the fundamental rule that no law will be allowed to so operate as to disturb or destroy rights already vested. Did the legislature intend that the act of 1891 (chapter 465) should be construed to operate retrospectively, and, if so, is the law, in so far as it relates to pre-existing rights, unconstitutional? No law which divests property out of one person and vests it in another for his own private purposes, without the consent of the owner, has ever been held a constitutional exercise of legislative power in any state of the Union. Cooley, Const. Lim. *165; Wilkinson v. Leland, 2 Pet. 658; Satterlee v. Matthewson, Id. 380; Hoke v. Henderson, 4 Dev. 4; Walles v. Stetson, 2 Mass. 143; Calder v. Bull, 3 Dall. 394; Dash v. Van Kleeck, 7 Johns. 507; Const. U.S. art. 1, § 10; Const. N.C. art. 1, § 17; Butler v. Com., 10 How. 416; Fletcher v. Peck, 6 Cranch, 137; Stanmire v. Taylor, 3 Jones, (N. C.) 207, 214; King v. Commissioners, 65 N.C. 603; Wesson v. Johnson, 66 N.C. 189; 1 Kent, Comm. 455; Stanmire v. Powell, 13 Ired. 312. Even in England, where there are no written constitutions, a statute will not commonly be construed to divest vested rights, and, when giving it a retrospective effect may lead to that result, it is allowed to operate prospectively only. Moore v. Phillips, 7 Mees. & W. 536; Couch v. Jeffries, 4 Burrows, 2462. The radical difference between the rules of construction prevailing in the two countries grows out of the fact that the courts in England are forced to concede the supreme and unlimited power of parliament, while in the United States legislatures are bound to observe, and the courts to enforce, the restrictions imposed upon all the co-ordinate branches of the government by the federal and state constitutions. Philosophical writers upon law generally in all countries, however, deny the power of the legislature to pass statutes that impair a right acquired under the law in force at the time of its enactment, and insist that the right to repeal existing laws does not carry with it the power to take away property, the title to which vested under and is protected by them. But the legislature of North Carolina is restrained by article 1,§ 10, of the constitution of the United States, and article 1, § 17, of the constitution of North Carolina, not only from passing any law that will divest title to land out of one person and vest it in another, (except where it is taken for public purposes, after giving just compensation to the owner,) but from enforcing any statute which would enable one person to evade or avoid the binding force of his contracts with another, whether executed or executory. Robinson v. Barfield, 2 Murph. 419; Butler v. Com., supra; Railroad Co. v. Nesbit, 10 How. 395; Fletcher v. Peck, supra; Terrett v. Taylor, 9 Cranch, 43: Dartmouth College v. Woodward, 4 Wheat. 519.
The first case in which the constitutional inhibition against the passage of a law impairing the obligation of a contract came before the supreme court of the United States for construction was Fletcher v. Peck, supra. The legislature of the state of Georgia had, by an act passed in 1795, granted land to Grinn and others, and the defendant Peck was a purchaser for a valuable consideration, holding through several mesne conveyances under the patentees named in the act. In 1796 the same body enacted a statute repealing the act of 1795, and declaring it and all grants issued under its provisions null and void, on the ground that its passage was procured by undue influence and corruption. The court held that the act of 1796 could not be construed to divest the title out of the defendant Peck and invest it in the state and rested its rulings not only upon the clause of the constitution mentioned, but also upon more general principles arising out of the organic law of all of the states. The court said upon this subject: "To the legislature all legislative power is granted; but the question whether the act of 1796, transferring the property of an individual to the public, be in the nature of a legislative power, is well worthy of serious reflection." This was the earliest intimation that, if the prohibition had been omitted in the federal constitution, the legislature of the state would have had no power to revoke its own grant without the consent of innocent persons holding under it. It has since been held in the appellate courts of the states generally that a law which provides for the transfer of the interest of an individual in land to another person or to the state, except for public purposes, and upon just compensation, is void, because it is in conflict with the provisions of the organic law that the three co-ordinate branches of the government should be kept forever separate and distinct, and that no person should be deprived of his property but by the law of the land. Stanmire v. Taylor, Hoke v. Henderson, King v. Commissioners, and Wesson v. Johnson, supra. It is true that the legislature may alter the remedy if its efficacy is not impaired, or take it away if one that is not calculated to diminish the value of the debt be provided in place of it. Long v. Walker, 105 N.C. 90, 10 S.E. Rep. 858, and the authorities there cited. The rules of evidence may be changed by legislative enactment, too; but if, by giving a retrospective operation to a statute passed for that purpose, it would divest any right of property that had already accrued, it should be construed to operate prospectively only, if at all. Sedg. St. & Const. Law, p. 195. 1 Kent Comm. 455, says: "A retrospective statute affecting and changing vested rights is very generally considered in this country as founded on unconstitutional principles and consequently inoperative and void." After a legacy had been bequeathed to a married woman, and when, under the law then in force, the husband had a right to it, subject to certain contingencies, the legislature of New York passed an act declaring that the real and personal property of any female then...
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