Lummus v. Davidson

• Citation: 76 S.E. 474,160 N.C. 484
• Parties: LUMMUS v. DAVIDSON et al.
• Decision Date: 27 November 1912
• Court: United States State Supreme Court of North Carolina

76 S.E. 474

160 N.C. 484

LUMMUS v. DAVIDSON et al.

Supreme Court of North Carolina

November 27, 1912

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

Action by J. L. Lummus against Le Roy Davidson and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Devise in trust to collect rents and pay to beneficiary after deducting taxes and repairs held to constitute an active trust this is an action to recover a certain tract of land. The plaintiff claims to be the owner of the land in controversy under a sale under execution against Le Roy Davidson, who derived his title and interest under the will of A. B Davidson, the material parts of which are as follows:

"Item 4. I give and bequeath to my son, E. L. B. Davidson, all my interest in and to a certain lot and house, situate in the city of Charlotte, and commonly called the 'Bank Building,' and be known also as No. 5 East Trade street, to be held by him in trust nevertheless for the following purposes, to wit: To collect the rents and profits arising therefrom and to pay the same over to my son, Le Roy Davidson, after having deducted therefrom the ratable part of the taxes to be assessed against said property, as well as the ratable part of any repairs that may have been made said realty necessary to preserve the property, but I hereby expressly charge the real estate in this item devised with the payment of any mortgage that may be upon the same at my death to the exoneration of my personal estate."

"Item 10. I will and direct that all the residue of my estate be converted into money by my executors and to this end they are hereby authorized and empowered to sell, either at public or private sale, as they deem best, for this purpose, all my real and personal estate, and the proceeds arising therefrom, together with the collections made by them upon debts owing to my estate, after the payment of my debts and incidental expenses of administration, they shall divide equally among my children, share and share alike, living at the date of the execution of this will.

"Item 11. I hereby name and appoint E. L. B. Davidson, and my friend, Jno. E. Oates, executors of this my last will and testament."

At the time of the death of the said A. B. Davidson on the 4th day of July, 1896, there was a mortgage upon said property to secure a note executed by him in the sum of $2,000, which mortgage has never been canceled and the debt has never been satisfied. It was admitted on the trial that, at the time of the death of A. B. Davidson, the rents and profits from his one-half of said lot were less than $500 per annum, and out of said rents and profits the interest on the mortgage of $2,000 and the taxes on the property were to be paid; the plaintiff further admitted that the mortgage or deed of trust for $2,000 is still on the property, and that Le Roy Davidson, at the time of the levy and sale under the devise in the will of A. B. Davidson, received the net rents and profits on one-half of said bank lot from the trustee, E. L. B. Davidson, who was in possession.

At the conclusion of the evidence, his honor being of the opinion that said trust estate is not liable to levy and sale on execution at law, rendered judgment accordingly, which is set out in the record, and from said judgment the plaintiff appealed to the Supreme Court, and assigned the said ruling as error.

J. W. Hutchison, of Concord, for appellant.

Maxwell & Keerans, of Charlotte, for appellees.

ALLEN J.

We have carefully considered the full and learned brief of counsel for appellant, supplemented, as it was, by an interesting oral argument, but we cannot agree to his conclusions.

Prior to the act of 1812, no equity could be sold under execution, nor can an equity be sold since the statute, "unless the sale of the equity can draw to it the legal estate, which cannot be if the legal estate is hitched to some other equity, because then equal forces are pulling in opposite directions." Tally v. Reid, 72 N.C. 339; Love v. Smathers, 82 N.C. 372; Everett v. Raby, 104 N.C. 480, 10 S.E. 526, 17 Am. St. Rep. 685; Gorrell v. Alspaugh, 120 N.C. 367, 27 S.E. 85; May v. Getty, 140 N.C. 320, 53 S.E. 75. It follows, therefore, if the trusts created by the will of A. B. Davidson are active trusts, and it is necessary for the trustee to hold the legal title to perform them, that the title or interest of Le Roy Davidson cannot draw to it the legal estate and is not subject to sale under execution.

The line is clearly marked between a devise or conveyance of the rents and profits to a person directly, and the case of such devise or conveyance to a trustee in trust to collect, and out of the rents to pay certain amounts, and then to pay the balance to such person.

The first class is considered by Justice Walker in Perry v Hackney, 142 N.C. 372, 55 S.E. 291, 115 Am. St. Rep. 741, 9 Ann. Cas. 244, in which he says: "The words 'all my rents' were held sufficient to pass real estate; for it was said to be according to the common phrase and usual manner of...