Pritchard v. Williams

• Decision Date: 10 April 1918
• Docket Number: 17.
• Citation: 95 S.E. 570,175 N.C. 319
• Parties: PRITCHARD ET AL. v. WILLIAMS.
• Court: North Carolina Supreme Court

95 S.E. 570

175 N.C. 319

PRITCHARD ET AL. v. WILLIAMS.

No. 17.

Supreme Court of North Carolina

April 10, 1918

Appeal from Superior Court, Camden County; Kerr, Judge.

Action by J. A. Pritchard and others against D. E. Williams. From a judgment for plaintiffs, defendant appeals. No error.

Clark C.J., dissenting.

Court did not err in refusing to permit defendant to prove for impeachment by cross-examination of principal witness for plaintiffs, facts which substantially appeared in evidence particularly where witness' bias was made to appear.

This is an action instituted by the plaintiffs, the children of D. T Pritchard and grand nephew and nieces of D. L. Pritchard, to establish a parol trust and to recover possession of land. The defendant relies on the plea of the statute of limitations and laches.

D. L Pritchard was formerly the owner of the land described in the complaint, and on January 2, 1886, he executed a deed therefor to J. G. Hughes, and it is at this time and in connection with the execution of this deed it is alleged the parol trust was declared. On March 14, 1888, after the levy of an execution against said Hughes and the allotment of his homestead, the part of the land in excess of the homestead, 80 acres, was sold, and a deed therefor made to the purchaser, James H. Sawyer. After the death of Sawyer this part of the land was on September 11, 1899, sold for partition among the heirs of Sawyer, and a deed therefor executed to L. P. Williams. On January 15, 1900, Williams conveyed this land to John S. McCoy. On January 7, 1907, McCoy conveyed to W. Lynch, and on January 14, 1911, Lynch conveyed this part of the land to the defendant. On January 14, 1894, Hughes conveyed the land covered by the homestead, 160 acres, to his wife by deed purporting to convey a fee, which was registered in 1902, and on May 3, 1907, Mrs. Hughes and her daughter Elizabeth conveyed the same land to the defendant. Mrs. Hughes died in 1913, Elizabeth Hughes in May, 1915, and this action was commenced in October, 1916.

There was a motion for judgment of nonsuit upon the ground that the action was barred by the statute of limitations upon the admitted facts. This motion was overruled, and the defendant excepted. His honor instructed the jury if they believed the evidence to answer the issue as to the statute of limitations in favor of the plaintiffs, and the defendant excepted. The jury returned the following verdict:

(1) Did Joseph G. Hughes hold the property sued for in trust to convey the same as alleged in the complaint? Answer: Yes.

(2) Did the defendant, or any of those under whom he claims, purchase the 160-acre tract for value and without notice of said trust? Answer: No.

(3) Did the defendant or any of those under whom he claims purchase the 80-acre tract for value and without notice of said trust? Answer: No.

(4) What has been the rental value since 1915? Answer: $500.

(5) Is plaintiff's cause of action barred by the statute of limitations? Answer: No."

Judgment was entered in favor of the plaintiffs, and the defendant appealed.

R. C. Dozier, of South Mills, and Aydlett & Simpson and Ehringhaus & Small, all of Elizabeth City, for appellant.

D. H. Tillitt, of Camden, and Meekins & McMullan, of Elizabeth City, for appellees.

ALLEN J.

The trust established by the verdict is that J. G. Hughes, the grantee in the deed of 1886, should hold the title in trust to convey the same to the wife of Jos. G. Hughes for life, and then to himself for life, if he survived her, and then to Mary Elizabeth Hughes for life, with a remainder over in two-thirds of said lands to her children, if any surviving her should live to be 21 years of age, and in one-third to the plaintiffs, and if she, said Mary Elizabeth Hughes, should die without children her surviving who should live to be 21 years of age, then to convey the whole of said lands after the death of said Mary Elizabeth Hughes to the children of said D. T. Pritchard, the plaintiffs in this action, share and share alike, in fee simple.

The verdict, when considered in connection with the charge, also establishes that neither the defendant nor any one under whom he claims is a purchaser for value; so that the question discussed, but not decided, in Wood v. Tinsley, 138 N.C. 509, 51 S.E. 59, and Lynch v. Johnson, 171 N.C. 632, 89 S.E. 61, as to the effect of the Connor Act on parol trusts, is not presented, and the learned counsel for defendant do not so contend in the oral argument or by brief.

The plaintiffs as remaindermen, vested as to one-third and contingent as to two-thirds interest, could have maintained an action to have the trust declared during the existence of the life interest, as without this right it would have been in the power of the trustee to defeat the trust, resting in parol, by a conveyance to an innocent purchaser for value.

"Where, however, a party has an interest, it is perfectly immaterial how minute the interest may be, or how distant the possibility of the possession of that minute interest, if it is a present interest. A present interest, the enjoyment of which may depend upon the most remote and improbable contingency, is nevertheless a present estate; and, as in the case upon Lord Berkley's will, though the interest may, with reference to the chance, be worth nothing, yet it is in contemplation of law an estate and interest, upon which a bill may be supported." 1 Daniel, Ch. Pr. 317.

"A remainderman is entitled to equitable relief whenever necessary to protect his interest against loss or injury." 16 Cyc. 658.

See to same effect Story, Eq. Pl. § 301; Allan v. Allan, 6 Ves. 135; Latham v. L. Co., 139 N.C. 9, 51 S.E. 780, 111 Am. St. Rep. 764.

This right is in the nature of a bill in equity to perpetuate testimony, with the additional element of declaring the trusts, which is no more than the jurisdiction in equity to enter a decree preserving the property, when it is in danger of loss, and where but for such decree the rights of interested parties might be destroyed.

In such proceeding by the remaindermen the land itself with the right of control and possession is not before the court. The res is the establishment of the respective iuterests in the title, and no order or decree can be entered disturbing the possession of those entitled to interests for life, and it cannot therefore be the equivalent of, nor coextensive with, an action to declare the trust and to recover possession of the land. If this right did not exist in the remaindermen, lapse of time cannot affect the present action for possession, which could not be maintained until the death of the life tenant in 1915, and, if it did exist, it came into being at the same time and by the same act with the right now attempted to be exercised, to establish the trust and to recover possession.

The two rights are not only not inconsistent, but one includes the other, and it is only when two rights are inconsistent that the party is put to his election and that the exercise of one, or the failure to do so, bars the other.

In Machine Co. v. Owings, 140 N.C. 505, 53 S.E. 345, Justice Hoke quotes the approved doctrine as follows:

"In Enc. Pl. & Practice, vol. 7, 362, the doctrine is stated as follows: 'As already stated, the principle does not apply to all coexistent remedies. As regards what have been termed consistent remedies, the suitor may, without let or hindrance from any rule of law, use one or all in a given case. He may select and adopt one as better adapted than the others to work out his purpose, but his choice is not compulsory or final, and, if not satisfied with the result of that he may commence and carry through the prosecution of another. Thus, where a sale of chattels is induced by the fraud of the vendee, the vendor may prosecute the vendee for the price of the articles in one action, and in another for damages on account of the fraud, both proceeding on the theory of ratifying the sale. But he cannot maintain either if he has rescinded the sale, or if, on the theory of rescission, he has resorted to replevin to recover the property. No suitor is allowed to invoke the aid of the courts upon contradictory principles of redress upon one and the same line of facts.' In 3 Words and Phrases Judicially Defined, p. 2338, it is said: 'The whole doctrine of election is based on the theory that there are inconsistent rights or remedies of which a party may avail himself, and a choice of one is held to be an election not to pursue the other. The principle does not apply to coexisting and consistent remedies.' These statements of doctrine are supported by well considered decisions, and are very generally accepted as correct. Whittier v. Collins, 15 R.I. 90 [23 A. 47, 2 Am. St. Rep. 879]; Bacon v. Moody, 117 Ga. 207 [43 S.E. 482]; Austen v. Decker, 109 Iowa, 109 [80 N.W. 312]; Black v. Miller, 75 Mich. 323 [42 N.W. 837]."

The principle has been applied in a number of cases to protect the remaindermen against the plea of lapse of time and laches. In Stewart v. Conrad, 100 Va. 135, 40 S.E. 624, there was a misappropriation of a fund held in trust for life and then in remainder, and the court said as to the right of action:

"The remaindermen, under the terms of the will creating the trust fund, are not entitled to the possession of any part of it until the death of the life tenant, who was a party to this suit, and who, so far as this record shows, is still living. Until her death the appellants would have no standing in court except to ask a court of equity to prevent or remedy a violation of the trust, and to preserve the trust fund. They had the right to invoke the aid of a court * * * for those purposes, but they were under no legal obligation to do so, and the

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