Shannonhouse v. Wolfe

• Decision Date: 19 May 1926
• Docket Number: 469.
• Citation: 133 S.E. 93,191 N.C. 769
• Parties: SHANNONHOUSE v. WOLFE.
• Court: North Carolina Supreme Court

133 S.E. 93

191 N.C. 769

SHANNONHOUSE v. WOLFE.

No. 469.

Supreme Court of North Carolina

May 19, 1926

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

Controversy without action between F. M. Shannonhouse, Jr., administrator of estate of F. M. Shannonhouse, deceased, as plaintiff, and J. K. Wolfe, as defendant. From the judgment for defendant plaintiff appeals. Affirmed.

Trustees' power of sale implied on use of word "disposal" or like language does not imply or delegate power to mortgage.

On the 22nd day of January, 1920, J. K. Wolfe executed and delivered the following deed:

"State of North Carolina, County of Mecklenburg.

"This deed, made and entered into this 22d day of January, 1920, by and between J. K. Wolfe and wife, Julia W. Wolfe, of the county of Mecklenburg and state of North Carolina, parties of the first part, Mrs. Beunah E. Creswell, Mrs. Mary B. Hunter, Mrs. Jennie G. Kirkpatrick, Mrs. Mattie E. Washam, H. G. Ashcraft, W. F. Graham, and B. J. Summerow, all of the county of Mecklenburg, state of North Carolina, parties of the second part, witnesseth:

"That the said parties of the first part, in consideration of $1 to the said parties of the first part paid by the parties of the second part, the receipt of which is hereby acknowledged, have bargained and sold, and by these presents do grant, bargain, sell, and convey, unto the said parties of the second part and to their successors all that certain lot or parcel of land, situate, lying and being in Charlotte township, Mecklenburg county, state of North Carolina, and more particularly described as follows:

"Located on the west side of the Park road, commencing at a stake in the center of said road 270.6 feet from H. B. Hunter's corner, and runs thence south 75 degrees 45 minutes west 480 feet to a stake; thence north 14 degrees west 210 feet to a stake; thence north 75 degrees and 45 minutes east 480 feet to a stake in the center of said Park road; and thence south 14 degrees east 210 feet with the center of said road to the beginning corner, and being parts of lots 6 and 7 as appears on the map of J. K. Wolfe's property duly recorded in the office of the register of deeds for Mecklenburg county in Book 230, pages 154 and 155.

"To have and to hold the said parcel of land, and all right, privileges, and easements thereunto in any wise appertaining, unto the said parties of the second part aforementioned and to their successors chosen as hereinafter specified, in trust and confidence, nevertheless, that the said parties of the second part and their successors shall hold, use, occupy, and enjoy the same for the purpose of establishing, maintaining, and carrying on as a community building, buildings and grounds for the benefit of persons of the white race owning land or living within the community lying between the present southerly limits of the city of Charlotte on the north and including the J. Watt Kirkpatrick farm or homeplace on the south, and such lands and white persons living to the east and to the west of the said Park road as may be determined from time to time by the said parties of the second part, under such rules and regulations as may be established for the government thereof by the said parties of the second part and their successors.

"And the said parties of the second part and their successors may, in addition to the uses hereunto before provided, use the said grounds and buildings, or permit the same to be used for school purposes for persons of the white race under rules established by the said parties of the second part: Provided, however, that such use for school purposes shall not deprive the white persons living in the said community from the reasonable use of said premises and buildings for community purposes under the rules established for the maintenance and operation thereof.

"And the following conditions are hereby made a part of this indenture, viz.: (1) The said premises shall be called 'The Park Road Community House.' (2) The control, government and entire management of and responsibility for the said community house shall be vested in the aforesaid parties of the second part and their successors, who shall be persons of the white race living in the said community and entitled to the use and enjoyment of the said community house. (3) The said parties of the second part or their successors shall have entire control of said property and premises for the purposes hereinbefore stated, and they shall also have entire control, disposal and management of any and all property whether real or personal, which shall at any time be given or conveyed to the said parties of the second part for the said community house, or of the income or profits of such money or property as may be given for the endowment or furtherance of any of the activities of the said community house. (4) In case of death or resignation of any of the aforesaid parties of the second part, such vacancy or vacancies shall be filled by election or appointment of the remaining parties, nominations of persons for such vacancies to be posted or advertised in some conspicuous place at least 30 days before election or appointment. (5) The said parties of the second part and their successors may elect or appoint such officers and committees as in their judgment may be necessary; provided, that they shall elect or appoint a secretary, one of whose duties shall be to keep proper minutes and records of all proceedings, vacancies and elections. (6) If at any time it shall become impossible or impracticable to carry on the trust hereby created according to the true intent and purpose thereof, then the said premises shall be used for public play grounds or recreation grounds for the white persons living in the said community until such time as the parties of the second part or their successors may find it possible and to resume the use of said premises for the purposes herein stated.

"In witness of all which the said J. K. Wolfe and his wife, Julia E. Wolfe, parties of the first part, have hereunto set their hands and seals the day and year first above written." This deed was duly recorded on the 24th day of January, 1920, and at the time of recording thereof the land described was vacant and unimproved. Thereafter on April 8, 1921, for the purpose of securing funds in part with which to erect a building on the land, the trustees borrowed from B. J. Summerow the sum of $1,000 and executed and delivered a deed of trust to the plaintiff's intestate as trustee for said Summerow, securing said money; said deed of trust being duly recorded in April, 1921. The deed of trust contained the usual power of sale in default of payment of principal or interest on said loan. Default having occurred in the payment of the indebtedness secured by said deed of trust, the plaintiff, as administrator of the trustee named in the deed of trust, sold the land at public auction in accordance with the terms of said deed of trust, at which sale the defendant became the last and highest bidder for the sum of $4,000. The sale was duly reported and no advanced bid was placed upon the purchase price within the time limited by law. Plaintiff thereupon tendered a deed to the defendant and demanded the purchase money. The defendant declined to accept the deed upon the ground that the deed would not convey to him a fee-simple title to the lands therein described, for the reason that the trustees had no power to execute a deed of trust or mortgage upon the property. It is admitted that the purchase price offered by the defendant is fair and reasonable.

Upon the record, as presented, Judge W. F. Harding held that the deed made by the plaintiff and thereafter tendered the defendant did not convey an indefeasible fee-simple title to the land therein described, and, further, that the defendant was not required to accept said deed or to pay said purchase price.

From the judgment so rendered, the plaintiff appealed.

Carswell & Ervin, of Charlotte, for appellant.

Pharr, Bell & Pharr, of Charlotte, for appellee.

BROGDEN J.

The determinative question is this: Did the trustees...