Smith v. Smith

• Decision Date: 05 May 1896
• Parties: SMITH et al. v. SMITH.
• Court: North Carolina Supreme Court

24 S.E. 666

118 N.C. 735

SMITH et al. v. SMITH.

Supreme Court of North Carolina

May 5, 1896

Appeal from superior court, Mecklenburg county; Timberlake, Judge.

Action by Carrie E. Smith and others against W. M. Smith. Decree for defendant, and plaintiffs appeal. Affirmed.

A court has no power to authorize a sale of land, and a reinvestment of the proceeds, where the land is held under a deed of trust creating contingent remainders, which renders it impossible for the court to know that all interests are before it.

Clarkson & Duls, for appellants.

James A. Bell, for appellee.

FAIRCLOTH, C.J.

The plaintiffs' application is for an order to sell land, and reinvest the proceeds. They show that it would promote their interest if they can do so. The deed under which they derive their interest shows an estate for life in Carrie E. Smith, with divers contingent remainders, depending upon the happening of several future events. However well the court might be convinced of the propriety of the sale, it is powerless to grant the plaintiffs' application, for the reason that these remainder interests are not, and cannot be, before the court, as they can only arise in futuro. Whether or when they may arise does not affect the question, as they may do so. They cannot now be represented even by classes, because of the uncertainty of future events. This rule has been long settled, and the reasoning seems to be exhausted in the following cases, cited by the defendant: Watson v. Watson, 3 Jones, Eq. 400; Justice v. Guion, 76 N.C. 442; Young v. Young, 97 N.C. 132, 2 S.E. 78.

Affirmed.