Shields v. Harris

• Citation: 130 S.E. 189,190 N.C. 520
• Decision Date: 25 November 1925
• Docket Number: 390.
• Parties: SHIELDS ET AL. v. HARRIS ET AL.
• Court: United States State Supreme Court of North Carolina

130 S.E. 189

190 N.C. 520

SHIELDS ET AL. v. HARRIS ET AL.

No. 390.

Supreme Court of North Carolina

November 25, 1925

Appeal from Superior Court, Guilford County; Schenck, Judge.

Action by Joseph H. Shields and others against James A. Harris and others. From a judgment as upon nonsuit, plaintiffs appeal. Affirmed.

Equity will not enforce trust so as to require violation of law.

Action to recover land in the city of Greensboro, and damages. From a judgment as upon nonsuit, plaintiffs appealed.

The following are the material facts:

That Robert Moderwell and Andrew Fountain, the owners in fee and in possession of a tract or parcel of land in Guilford county, N. C., described as follows: "Beginning at a corner on Fountain land running north 6.33 rods; thence running north 6.33 rods, on Robert Moderwell's land to a corner; thence due east 12.65 rods to a stake; thence south 6.33 rods to a stake; thence 6.33 rods on Fountain land to a corner; thence due west 12.65 poles to the beginning, containing one acre. 'This lot or parcel of land is known as the Old Methodist Burying Ground' "--on the 14th day of March, 1836, executed and delivered a deed conveying said land to Robert Mitchell and others, as trustees of the Methodist Episcopal Church and their successors in office, which deed is in usual form but containing these terms, "In trust for the uses and purposes hereinafter mentioned and declared," and in the habendum clause this "In trust that they shall appropriate and set apart said piece or parcel of land as a burying ground for the use of the Methodist Episcopal Church, and further that the said Andrew Fountain shall have the full and free privilege of interring in said graveyard all his relations and such other as he may think proper," with a provision for the appointment of the successors to the named trustees according to the statutes, which deed was registered January 26, 1839. That, by authority contained in said deed, the grantees in said deed went into possession of the property and held the same under said deed, and that the same was used as a burying ground in accordance with the stipulations contained in said deed, and became known as the "Old Methodist Burying Ground."

That on the 12th day of February, 1907, the General Assembly of North Carolina enacted the following private law, known as chapter 67, Private Laws of 1907:

"Chapter 67, Private Laws 1907. The General Assembly of North Carolina do enact:

Section 1. That S. L. Trogden, J. A. Odell, M. Lamb, W. H. Turner W. E. Coffin, W. F. Alderman, Jr., J. N. Richardson, G. Will Armfield, and Thomas J. Copeland, trustees of West Market Street Methodist Episcopal Church South, Greensboro, Western North Carolina Conference, and their successors in office, are authorized and empowered to remove and reinter in suitable lots in Green Hill Cemetery, Greensboro, North Carolina, and in a decent and suitable manner, the remains of bodies buried in a lot or tract of land known as the Methodist Burying Ground, situate in the southern part of Greensboro, North Carolina, and east of South Ashe street in said city, which forms its eastern boundary; together with the stones and slabs marking the graves, such stones and slabs to be replaced at their respective graves in the plots in said Green Hill Cemetery.

Sec. 2. That the said trustees shall give thirty days' notice, in a newspaper published in Greensboro, North Carolina, of their purpose to remove and reinter said remains as provided above; and, at the request of the next of kin of any person whose remains are buried at said Methodist Burying Ground, said remains shall be turned over to said next of kin so applying, to be interred at any place they desire."

That the parties named in said act are successors in office to the trustees named in the deed hereinbefore referred to. That pursuant to the provisions of said act the bodies interred in the Old Methodist Burying Ground were removed from said burying ground in March, 1917, and reinterred in Green Hill Cemetery, Greensboro, N. C., by the parties named in the preceding paragraph.

That on or about the 4th day of October, 1901, the governing body of the city of Greensboro passed an ordinance, to wit:

"That no person shall bury or cause to be buried any dead bodies in any other place within the city limits other than Green Hill or Union Colored Cemetery, and any one so offending, a penalty of $25 shall be imposed."

It is admitted:

That the trustees of West Market Street Methodist Episcopal Church South, successors in office to the trustees described in the original deed from Fountain and Moderwell, on the 10th day of January, 1919, sold and conveyed to the defendants James A. Harris, J. H. Dillard and C. O. Payne, since deceased, the land known as the "Old Methodist Burying Ground," and that said parties entered into possession of said land under said deed, claiming the same as their own private property. That Robert Moderwell died in the year 1836, leaving a will duly probated in the office of the clerk of the superior court of Guilford county, in the Book of Wills B, at page 556. That by the terms of said will all the rest and residue of his estate, both real and personal, was devised and bequeathed to his wife, Martha Moderwell, except such as was excepted to her and her heirs forever in said will.

It is further admitted:

That there was no exception made of the lands described in the complaint, and that no special reference was made to said lands in said will. That in 1867 Martha Moderwell died, leaving a will which was duly probated in the office of the clerk of the superior court of Guilford county, in Book of Wills D, at page 347. That under the terms of the will of the said Martha Moderwell, she gave and bequeathed to her nieces, Mary Shields, Martha Shields, Rachel Shields, Julia Shields, Hybernia Shields, and Nancy Shields, the rest and residue of her estate, real and personal, to be equally divided between them share and share alike, to them and each of them, their heirs and assigns forever. No special reference was made in said will to the lands in controversy.

That this suit was duly started on the 15th day of January, 1924. That on the 7th day of January, 1922, the defendants Payne and Harris and their wives conveyed to the defendant Dillard, their two-thirds interest in a part of the land conveyed to Payne, Harris, and Dillard by the trustees of West Market Street Methodist Episcopal Church. That thereafter the said Dillard and wife conveyed to the defendant John W. Simpson, trustee, the said portion of said land to secure an indebtedness of $3,000 therein secured, which said deed of trust is recorded in Book 378, at page 100; said deed of trust being dated January 7, 1922, recorded January 12, 1922.

That by deed recorded in Book 327, at page 2, in the office of the register of deeds for Guilford county, dated the 10th day of May, 1919, the defendants Dillard and Payne and their wives conveyed to the defendant Harris their two-thirds interest in a part or parcel of the land described in deed to said three defendants from the trustees of the West Market Street Church. That thereafter said Harris and wife conveyed the same to J. F. Stephens, trustee, by deed of trust recorded in the office of the register of deeds of Guilford county, in Book 337, at page 223, on the 9th day of April, 1921, to secure an indebtedness of $2,000.

That since the commencement of this action C. O. Payne died intestate and without issue, and his wife, Bessie Payne, and his brothers, to wit, Rodney Payne and John Payne, and his sisters, to wit, Sylvia Payne, Eliza Payne, being all and his only heirs at law, and Bessie Payne, his duly qualified administratrix, pursuant to order of the court duly issued, were made parties to this action.

That since the commencement of this action James I. Fountain has died testate, and his will was duly probated in Book of Wills J, at page 246, in the office of the clerk of the superior court of Guilford county, N. C., March 26, 1924, which said will contained the provision that said James I. Fountain devised all his right, title, and interest to the land in controversy to his wife, Jennie L. Fountain.

It is admitted: That the annual rental value of said tract of land is $25 per year. That, at the time of the beginning of this action and since, James A. Harris, J. H. Dillard, and the heirs of C. O. Payne, and Jessie Davis, were in possession of this land and are still in possession thereof. That James I. Fountain is the heir at law of Andrew Fountain. That the plaintiffs other than Jennie L. Fountain are related to Robert Moderwell, the other grantor in the original deed. That if the plaintiffs, other than Jennie L. Fountain, have any interest in the land described in the complaint, which the defendants deny, such interests are the interests alleged in the complaint. That, if Jennie L. Fountain has any interest in said land, which the defendants deny, the same is an undivided one-half interest therein.

R. C. Strudwick, of Greensboro, V. S. Bryant, of Durham, and Adams & Adams, of Greensboro, for appellants.

Hoyle & Harrison, Hines & Kelly, and J. S. Duncan, all of Greensboro, for appellees.

VARSER J.

A condition subsequent with a clause of reverter does not appear in the deed recited, nor does it arise by clear implication. Braddy v. Elliott, 146 N.C. 578, 60 S.E. 507, 16 L. R. A. (N. S.) 1121, 125 Am. St. Rep. 523. No apt words are used to indicate an intention to create a condition subsequent which will work with a forfeiture. To every good expressed condition is required an external form (that is, sufficient words to declare an intent in the party to have the estate conditional), and an internal form (that is,...