Powell v. Woodcock

• Decision Date: 25 November 1908
• Citation: 62 S.E. 1071,149 N.C. 235
• Parties: POWELL v. WOODCOCK.
• Court: North Carolina Supreme Court

62 S.E. 1071

149 N.C. 235

POWELL v. WOODCOCK.

Supreme Court of North Carolina

November 25, 1908

Appeal from Superior Court, Buncombe County; Ward, Judge.

Action by George S. Powell against Julian A. Woodcock. From a judgment for plaintiff, defendant appeals. Affirmed.

This action was heard in the superior court upon the following case agreed: "(1) On the 13th day of September, 1902 Sarah S. Newton, wife of George H. Newton, being the owner in fee and in possession of a tract of land in the city of Asheville, executed her will which, on the 31st day of October, 1903, after the death of the said Sarah S. Newton was duly probated and recorded, as prescribed by law. (2) The said Sarah S. Newton, at the time of her death, left surviving her George H. Newton, her husband, and one child Neinon Newton, who was at that time, and still is a minor. (3) The provisions of the will material to this controversy are as follows: 'I hereby give, devise and bequeath all the rest, residue and remainder of my estate of whatsoever name and description and wheresoever situated to my husband George H. Newton, in trust to receive, hold and invest and reinvest the same in such securities as he may deem meet and proper for the best interest of my estate and to take receive and appropriate to his own use and benefit the entire income and profit therefrom until my daughter Neinon Newton shall attain the age of twenty-one years. When my daughter shall attain the age of twenty-one years, he shall pay to her the entire profit and income from said estate until she shall attain the age of thirty-five years, and when she shall attain the said latter age to pay over and deliver to her the entire principal of said estate and the trust hereby created shall thereupon cease and determine. Should my said daughter Neinon die before attaining the age of thirty-five years, then upon her death the principal of my estate shall pass and vest in my said husband, George H. Newton, and his heirs forever.' The said George H. Newton has duly qualified as executor of the last will of Sarah S. Newton. (4) On the 16th day of October, 1905, Geo. H. Newton, individually, and as trustee appointed in said will, duly executed and acknowledged a deed of conveyance, sufficient in form and words to convey to George S. Powell in fee simple the said lot or parcel of land, which said deed was thereafter duly recorded. (5) In the year 1906 J. C. Martin of Buncombe county, N. C., duly qualified as the guardian of Neinon Newton, and as such guardian instituted a special proceeding in the superior court for the purpose of selling and conveying, as prescribed by statute, all of the right, title, and interest of Neinon Newton in said lot of land to George S. Powell, in order that the interest of the said minor in said land might be converted into money, and transferred to her domicile. Said proceeding was regular in all respects, and a judgment was therein duly entered by the clerk of the superior court, and approved by the judge of the superior court, directing the guardian to convey, by a proper deed, the interest, right, and title of Neinon Newton in and to said lot of land to George S. Powell for the consideration agreed upon between the parties thereto, and that thereafter the guardian duly executed and delivered to George S. Powell a deed of conveyance, sufficient in form and words to convey to him all of the right, title, and interest of Neinon Newton in and to said tract or parcel of land; that the total consideration paid by George S. Powell for the land was $1,500. (6) In the month of August, 1908, George S. Powell, claiming to be the owner of said lot of land, and by virtue of said deeds of conveyance, agreed to sell and convey the land to the defendant J. A. Woodcock in fee simple, and the defendant Julian A. Woodcock agreed to purchase the said land at the price of $2,000 in cash, and George S. Powell is ready, willing, and able, and has offered, to execute and deliver a proper deed of conveyance for the land, purporting to convey the same to said Woodcock in fee simple, upon the payment of the amount agreed to be paid by Woodcock, but the said Woodcock has refused to accept the deed, and has refused to pay the purchase money, or any part thereof, upon the ground that the said deeds executed to George S. Powell are not sufficient in law to pass to Powell a complete and perfect title to said land, and that Powell is therefore not able to make to him a good title in fee simple to said property. (7) If the court is of the opinion that the will and the said several deeds to George S. Powell are sufficient in form and substance to pass to him all of the right, title, and interest which Sarah S. Newton owned in said lot of land, then judgment shall be entered herein in favor of the plaintiff, and against the defendant, for the sum of $2,000, and for specific performance of the contract of sale in accordance with the course and...