Maxwell v. Bakringer

• Decision Date: 16 February 1892
• Parties: Maxwell et al. v. Bakringer.
• Court: North Carolina Supreme Court

14 S.E. 516

110 N.C. 76

Maxwell et al.

v.Bakringer.

Supreme Court of North Carolina.

Feb. 16, 1892.

Declaration op Trcsy—Power op Bale — Statute op Limitations. ' 1. Where it was expressly declared on the back of a deed that defendant held the land conveyed thereby for the joint benefit of himselfand plaintiffs' intestate, and that it was "to stand as security" for certain notes and for the balance of the purchase money paid by plaintiffs' intestate, and that the profits realized above these sums should be equally divided between defendant and plaintiffs' intestate, such declaration created a trust in the land for the benefit of plaintiffs' intestate. Smith v. Watson, 2 Barn. & C. 401, and Sprague v. Bond, 108 N. C. 382, 13 S. E. Rep. 143, distinguished.

2. Such declaration did not create a power of sale in the trustee, or impose such duties as could not be performed without such power.

3. Where the trustee in such case sells the land the sale is void.

4. The statute of limitations would not begin to run until the possession of the land had been demanded by plaintiffs' intestate, or those claiming under him, and had been refused by defendant, the possession of a trustee not being inconsistent with the possession of the cestui que trust.

Appeal from superior court, Mecklenburg county; W. A. Hoke, Judge.

Action by W. G. Maxwell and others against Rufus Barringer. Judgment for plaintiffs. Defendant appeals. Affirmed.

Burwell & Walker, for appellant.

Junes & Tillett, for appellees.

Shepherd, J. The plaintiffs are suing as the heirs at law of F. H. Maxwell, and they pray that an account be stated; that certain land be sold, and that the proceeds be divided between them and the defendant, according to their respective interests. It is insisted by the defendant that thesaid F. H. Maxwell had no interest in the land that was descendible to the plaintiffs as his heirs at law, and that, if he had such an interest, it was converted into personalty by virtue of an alleged sale made by the defendant, and that he has fuily accounted and settled with the administrator of said Maxwell for the proceeds of the same.

1. We will first consider the nature of the interest which F. H.Maxwell acquired by virtue of the writing indorsed, under the hand and seal of the defendant, on the back of the sheriff's deed. It is there expressly declared that the defendant holds the land for the joint benefit of himself and Maxwell, but it is "to stand as a security " for a note of $1,486.89 and interest, given by Maxwell to the defendant, and also "to secure a note of $300 to J. H. Wilson, of this date, and then the land to stand for the balance of the purchase money so paid and receipted for by said Maxwell." We are very decidedly of the opinion that this vested an equitable estate in common in Maxwell, the land being charged with the payment of the indebtedness mentioned. It is true that it is provided that "if any profits are realized over and above these sums, the same are to be equally divided between [the defendant] and F. H. Maxwell;" but we are unable to perceive how the addition of these words can have the effect of changing the character of such equitable estate. In view of the context, the word "profits" may well be construed to mean such surplus as may remain, should it be necessary to make a sale to satisfy the said indebtedness. The case of Smith v. Watson, 2 Barn. & C.401, cited by counsel, is not in point. There A., a merchant, and B., a broker, agreed that the latter should purchase goods from the former, and in lieu of brokerage should receive for his trouble a certain proportion of the profits arising from the sale, and should bear a proportion of the losses. It was held that this did not vest in B. any share in the property purchased or in the proceeds of it. Bayley. J., remarked that, if A. had agreed that B. should have " that proportion of the property itself, it would no doubt have become the joint property of the two." In our case the land seems to have been purchased by the defendant and Maxwell, and there is, as we have seen, a declaration of trust that the defendant is to hold the land for their joint benefit. Neither does the case of Sprague v. Bond, 108 N. C. 382, 13 S. E. Rep. 143, apply. There a grantee of an absolute deed orally agreed to sell the land, and divide the profits with the grantor. The grantee sold the land, and it was held that oral testimony was admissible to prove the agreement in an action by the grantor for an account of the profits. The court at the same time declared that such an agreement could not, under the circumstances, be enforced as a trust against the land, because it was within the statute of frauds; but, the sale having been voluntarily made by the grantee, a recovery was permitted, because it related to the consideration only. The argument which assimilates this case to the one before us improperly assumes that Maxwell had no enforceable trust against the land, whereas we have seen that he had an equitable estate therein. Parties owning land in common may agree that the profits, either before or after a sale, shall be equally divided, subject to any charges that they may impose upon their respective interests; but until there has been a conversion, either equitable or legal, their interests must necessarily retain the characteristics of real property, and as such be descendible to their heirs. There is certainly nothing in the declaration of trust that amounts to an equitable conversion; for, even if a power of sale had been conferred upon the defendant trustee, there is nothing in the language used which...