Tyndall v. Tyndall

• Decision Date: 17 October 1923
• Docket Number: 231.
• Citation: 119 S.E. 354,186 N.C. 272
• Parties: TYNDALL ET AL. v. TYNDALL ET AL.
• Court: North Carolina Supreme Court

119 S.E. 354

186 N.C. 272

TYNDALL ET AL. v. TYNDALL ET AL.

No. 231.

Supreme Court of North Carolina

October 17, 1923

Appeal from Superior Court, Lenoir County; Calvert, Judge.

Action by Kathleen Tyndall and another against T. R. Tyndall and another. From the decree rendered, all parties appeal. Decree as to plaintiffs affirmed, as modified, and, as to defendant named, reversed.

W. J Tyndall and Addie E. Tyndall were husband and wife. On November 15, 1898, J. A. McDaniel and wife executed a deed in fee simple to W. J. Tyndall for a lot in the city of Kinston the entire consideration thereof, according to the verdict of the jury, being the sole and separate money of Mrs. Tyndall. A small house was then built on the lot, and was occupied by the family, the plaintiff contending that it was built by W J. Tyndall, the defendants contending that the money which went into the building was the property of the wife, and that a part of it was secured by a mortgage on the property. On this question the evidence is not definite. The plaintiffs were the only children born of this marriage. While the family were living in this house W. J. Tyndall died, but the date of his death does not appear. On February 23, 1904 Addie E. Tyndall and T. R. Tyndall were united in marriage and on January 6, 1905, the defendant Louise was born. The evidence indicates that Mrs. Tyndall did not know that the title to the lot was taken in the name of her first husband until some time after her second marriage. She died November 28, 1908, survived by the parties to the action. The object of the suit is to remove an alleged cloud from the plaintiffs' title.

Where the husband purchased land, and took title in his name, but the purchase price was paid with the wife's money, a resulting trust was created in her favor such as arises by implication of law and is founded upon the presumed intention of the parties.

Cowper, Whitaker & Allen, of Kinston, for plaintiffs.

Rouse & Rouse and P. D. Croom, all of Kinston, for defendants.

Plaintiffs' Appeal

ADAMS J.

The plaintiffs rest their alleged cause of action on these two grounds: (1) The complete title to the lot vested in their father, W. J. Tyndall, as grantee of McDaniel, and upon his death descended to the plaintiffs as his heirs at law; (2) even if the lot was paid for out of money belonging to Mrs. Tyndall she did not contest or dispute the title during the life of her first husband, and had only a right in equity, and not such seizin as was necessary to transmit the inheritance to her heirs.

On the other hand the defendants insist that out of the purchase by W. J. Tyndall there arose a resulting trust in favor of Mrs. Tyndall, whereby she held such title or estate in the property as was descendible to her surviving children, subject to the curtesy of her surviving husband. The rights of the parties are dependent upon a proper solution of these respective contentions, and the solution cannot be worked out without reference to the equitable doctrine of trusts.

By means of the doctrine of uses as developed in the common law the title to land was decomposed or separated into the constituent elements of legal and beneficial ownership, the feoffee holding the legal title with no beneficial right, and the cestui que use the beneficial interest with no legal title. While the feoffee was originally regarded in law as the real owner, the cestui que use could alien or devise the use, which if not aliened or devised descended according to the rules of the common law pertaining to inheritances in land. This situation developed two classes of beneficial interests--the simple use and the special trust--each of which was enforceable by a subp na issuing out of chancery; for the courts of common law took no cognizance of these equitable interests. But no restraint was imposed on the feoffee's right of alienation; consequently, if the feoffee and the cestui que use disposed of their respective interests, the alienee of the feoffee could interfere with the beneficial enjoyment of the alienee of the cestui que use. This was one of the several evils which occasioned the enactment of the Statute of Uses (27 Henry VIII).

It was the purpose of this statute to execute the use, or to transfer the use into possession by providing that, wherever one person was seized of an estate for the use of another, the cestui que use should be deemed to be seized and possessed of the same estate in the land that he had in the use, and should have power to protect his possession by action or entry for waste, disseizin, trespass, condition broken, or other similar wrong. Under these circumstances the estate could be dealt with at law, and the cestui que use was no longer compelled to appeal to the conscience of the feoffee or to call in aid the powers of a court of chancery. But in construing the statute the courts afterwards concluded that there were certain uses which the statute did not execute--for example, an estate to A. to the use of B. in trust for C. At law it was held that the statute extinguished A.'s interest and transferred the legal estate to B., but did not affect the trust for C. Although B. was bound in good conscience to give C. the enjoyment of the estate, still at law C. had no remedy, and he could proceed as before the statute only by subp na in chancery to compel B. to execute the trust. There were other nonexecuted uses which could not be enforced in a court of law, and the courts of chancery for the purpose of compelling performance took jurisdiction of the uses which were not executed by the statute--from which situation was evolved the modern doctrine of trusts. Pollock & Maitland's His. Eng. Law, vol. 2, pp. 226, 236; Select Essays in Anglo-Am. Legal His. vol. 1, p. 218; 2 Bl. Com. 328; Bispham's Prin. Eg. 84 et seq.; 1 Perry on Trusts, cc. 1 and 10; 4 Kent's Com. 290; McDonogh's Ex. v. Murdoch, 15 How. 367, 14 L.Ed. 750.

From the foregoing discussion it is apparent that where land is held by a trustee for the benefit of another the courts of chancery generally treat the cestui que use or cestui que trust as the beneficial owner of the land, and not the mere possessor of an equitable right.

"Under the system now generally prevailing, the cestui que trust is regarded as the real owner of the property, the trustee being merely a depositary of the legal title. His is not a property right, but a legal duty founded upon a personal confidence; his estate is not that which can be enjoyed, but a power that may be exercised. No person but the trustee or one claiming under him can set up his legal estate against the equitable estate of the cestui que trust." 39 Cyc. 203.

If it be contended that the doctrine we have referred to applies to express trusts, and not to those arising by implication of law, and that in the latter class entry or actual seizin is necessary to the inheritance, a sufficient answer may be found in the change brought about by amendments to the canons of descent. The subject is clearly and fully discussed by Justice Walker in Early v. Early, 134 N.C. 258, 46 S.E. 503, in which he emphasizes the distinction between the actual or legal seizin formerly necessary to cast the descent and the right, title, or interest in the inheritance which constitutes a sufficient seizin under the amended rules. Revised Statutes, c. 38; Revised Code, c. 38; C. S. c. 29, § 1654 (12). In that case he said:

"We must conclude, after carefully reading Lawrence v. Pitt, 46 N.C. 344, which was decided in 1854, that it was thought the then existing law as declared by the court, which had its origin in the feudal system, and which was applied in that case, should be changed and brought more into harmony with modern conditions and requirements. It was manifestly in consequence of that decision that the amendments to the Revised Statutes of 1836 were made in the Revised Code of 1854, which amendments are as follows: Rule 1 of chapter 38 of the Revised Statutes provides that: 'Inheritances shall lineally descend to the issue of the person who died last, actually or legally seized, forever, but shall not lineally ascend, except as is hereinafter provided for,' while section 1 of chapter 38 of the Revised Code provides that: 'When any person shall die seized of any inheritance, or of any right thereto, or entitled to any interest therein, not having devised the same, it shall descend under the following rule: Rule 1. Every inheritance shall lineally descend

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