Ray v. Poole

• Court: North Carolina Supreme Court
• Writing for the Court: CLARK, C.J.
• Citation: Ray v. Poole, 187 N.C. 749, 123 S.E. 5 (N.C. 1924)
• Decision Date: 21 May 1924
• Docket Number: 341.
• Parties: RAY ET AL. v. POOLE.

123 S.E. 5

187 N.C. 749

RAY ET AL. v. POOLE.

No. 341.

Supreme Court of North Carolina

May 21, 1924

Appeal from Superior Court, Granville County; Harding, Judge.

Submission of controversy between C. D Ray and another, plaintiffs, and Georgia H. Poole, defendant. Judgment for defendant, and plaintiffs appeal. Reversed.

The defendant contracted to convey to the plaintiffs a certain lot in Oxford at the purchase price of $2,900. Subsequently the plaintiffs declined to take the deed tendered, alleging that defendant could not convey a good and sufficient title.

On September 7, 1908, H. C. Herndon conveyed to the defendant Georgia H. Poole, certain parcels of land in Oxford, among which was included the land in controversy. The deed specified that the conveyance was to "Georgia H. Poole for her lifetime and at her death to her children in equal shares," and the habendum clause recited:

"Her interest to each of these properties is during her lifetime and after her death to her children in equal shares."

At the date of said deed she had two children, one named Bettie and the other John, both minors without guardian. They were and are the only children of Georgia H. Poole, who is now 54 years of age.

On March 28, 1911, she conveyed to John R. Young, her brother, a one-half undivided interest in the life estate conveyed to her by Herndon as aforesaid. On April 22, 1911, John R. Young instituted before the clerk of the court of Granville a special proceeding against Georgia H. Poole, Bettie Poole and John H. Poole for partition by sale of the lands described in the aforesaid deed. A guardian ad litem for said infants was appointed, who filed an answer admitting the material allegations in the petition for sale for partition. On May 12, 1911, an order of sale in accordance with the petition was made, a commissioner appointed, and sale made after due advertisement, at which John R. Young became the purchaser of said land for himself and sister for the sum of $5,400. The sale was duly confirmed by the court, and a deed executed by the commissioner to John R. Young and Georgia H Poole, on July 3, 1911. On July 15, 1911, letters of guardianship upon the estates of Bettie and John H. Poole, infants, were granted to John R. Young, their uncle.

On February 3, 1912, Georgia H. Poole conveyed her one-half interest in the land to her brother John R. Young, and on March 26, 1915, he reconveyed to said Georgia H. Poole all his right, title, and interest in said property by deed duly recorded.

In 1922 the said Georgia H. Poole contracted in writing to convey to the plaintiffs the lot in question duly described in said contract for the sum of $2,900, and later tendered them a deed in fee simple on November 23, 1923, with full covenants of warranty, which they refused to accept upon the ground that the defendant was unable to convey a good title to the same.

The controversy was thereupon submitted to the superior court upon a case agreed, who adjudged that the defendant, Georgia H. Poole, had a good and sufficient title in fee to said lot and had a good right to convey the same and should recover the sum of $2,900 therefor. Appeal by plaintiffs.

Parham & Lassiter, of Oxford, for appellants.

A. W. Graham & Son, of Oxford, for appellee.

CLARK C.J.

The defendant contends that the remainder to the children of Georgia H. Poole under the deed from H. C. Herndon was a vested remainder, and that a life tenant can maintain a partition proceeding against the remaindermen; and further, if the court should be of the opinion that the remainder to the children was contingent, then the irregularity in bringing the proceeding before the clerk instead of the judge has been cured by chapter 64, Laws 1923, which was a re-enactment of C. S. § 1745.

We find no authority in this state to support a proceeding for partition between the life tenant and the remaindermen. Georgia H. Poole, as life tenant, could not maintain this proceeding against the infant remaindermen, and a different result cannot be attained by merely splitting the life estate between her and her brother. He was in no stronger position in regard to the remaindermen than she was prior to her conveyance to him.

It would seem manifest that the conveyance by her was made for the purpose of bringing the partition proceedings to sell the interest of the children and vesting the title in the life tenant free of limitations. The statute, C. S.§ 3215, provides that one or more persons claiming real estate as joint tenants or tenants in common may have partition, but is no authority for partition as between the life tenant and the remaindermen except where the proceeding is brought by the remaindermen and the life tenant is joined. Nor does C. S. § 1745, authorize or validate a partition sale at the instance of a life tenant against vested remaindermen who are not infrequently children.

C. S. § 1744, provides:

"In all cases where there is a vested interest in real estate, and a contingent remainder over to persons who are not in being, or when the contingency has not yet happened which will determine who the remaindermen are, there may be a sale of the property by a proceeding in the superior court at term time,which proceeding shall be conducted in the manner pointed out in this section."

In this case there was only an ordinary partition proceeding before the clerk of the court. If this were a contingent remainder there was neither allegation in the petition nor finding of fact by the court that the sale was...