Parham v. Henley

• Decision Date: 02 June 1944
• Docket Number: 740.
• Citation: 30 S.E.2d 372,224 N.C. 405
• Parties: PARHAM v. HENLEY et al.
• Court: North Carolina Supreme Court

30 S.E.2d 372

224 N.C. 405

PARHAM v. HENLEY et al.

No. 740.

Supreme Court of North Carolina

June 2, 1944

Civil action to have trust deed cancelled of record and removed as cloud upon plaintiff's title.

From the admission in the pleadings and the evidence offered on the trial these pertinent facts are shown in the record:

1. On April 20, 1933, J. K. Reynolds being the owner of a certain tract of land in Orange County, North Carolina, which he had acquired in the year 1921, executed and acknowledged a deed to Eliza Parham, trustee, which was filed for record in the office of the Register of Deeds of Orange County February 9, 1934. The description of real estate contained in this deed covered certain hotel property and lots in the State of Florida, and concluded with these words 'together with all other pieces or parcels or interest in or to real estate to which I am now seized or in which I now hold an interest'. And it also contained these provisions: 'To have and to hold the same until the said Mrs. Eliza Parham, party of the second part herein as Trustee, but not individually, as hereinafter set forth. During the lifetime of the grantor herein, J. K. Reynolds the said Mrs. Eliza Parham as trustee as above set forth, to have the absolute custody and control of the property herein mentioned with power to sell, manage or dispose of in any manner as in her judgment shall be best, the proceeds of which from either rentals, sales or from any other manner derived from the said property to be used for the care, support and as the property of the said J. K. Reynolds, and upon the death of the said J K. Reynolds, the grantor herein, and the payment of his just debts and funeral expenses, the said Trustee hereinbefore mentioned shall have the power and authority as said Trustee to sell and dispose of any part or all of the said property hereinbefore conveyed, then remaining in her hands as Trustee, and shall didivide equally the proceeds from the said sale of such property as then remains, among the said C. F. Henley, W. H. Henley, Mrs. Eliza Parham, O. L. Henley, Mrs. Bessie Purvis, Mrs. Ada Ratley, Mrs. Eva Inman, Mrs. Helen Trollinger and Mrs. Emma E. Washburn in equal parts or portions, share and share alike.

'The purpose of this indenture being to secure to the grantor herein the income and revenue or proceeds of sale of above described property for and during his lifetime and to permit the said Trustee to administer and control the said property to the best of her knowledge and ability toward that purpose and after the death of said grantor to assure and secure a legal and equitable division between the other parties hereinbefore named.

'The said Mrs. Eliza Parham, the Trustee hereinbefore named, is hereby specifically given and empowered with full and complete power and right to at any time sell assign, transfer, mortgage, incumber, lease or sublet for any term of years, any or all of said property should the same be in her opinion for the best interest of the said estate or the said grantor herein, and shall especially have power and authority to lease or sub-let any part or all of the said premises for a term of years which in her opinion shall be best for the said estate of the said grantor herein.'

2. After the trust deed was executed, J. K. Reynolds, who was then in Florida, sent for T. M. Armstrong, who was looking after the Orange County farm, and told him that he had appointed Mrs. Parham trustee of his property and Armstrong saw the said deed, and he continued to look after the land.

3. The cestui que trustent in said deed, except Eliza Parham, are defendants in this action. Eliza Parham died July 8, 1936, survived by her husband, the plaintiff, and three children, two daughters and a son, who are defendants in this action,--the oldest born January 28, 1908, the next November 13, 1913, and the youngest August 30, 1921. There has been no administration upon her estate, nor has there been a successor trustee appointed.

4. On June 28, 1934, after the trust deed above referred to had been executed and registered in Orange County, J. K. Reynolds executed a general warranty deed to plaintiff, T. C. Parham who was the husband of said Eliza Parham, purporting to convey to him by specific description the said Orange County tract of land. The recited consideration is $100, and an agreement upon the part of Parham to care for the grantor in manner specified. This deed was acknowledged on June 28,...