Wilson v. Leary

• Decision Date: 16 February 1897
• Citation: 26 S.E. 630,120 N.C. 90
• Parties: WILSON et al. v. LEARY et al.
• Court: North Carolina Supreme Court

26 S.E. 630

120 N.C. 90

WILSON et al. v. LEARY et al.

Supreme Court of North Carolina

February 16, 1897

Appeal from superior court, Bertie county; Robinson, Judge.

Ejectment by E. Wilson and others against John W. Leary and others. From a judgment for plaintiffs, defendants appeal. Reversed.

Francis D. Winston and Shepherd & Busbee, for appellants.

Battle & Mordecai, for appellees.

CLARK J.

The plaintiffs must recover upon the strength of their own title and not upon defects, if any, in the title of the defendants. The conveyance by their ancestor, Henderson Wilson, was in fee simple to trustees "to convey to Oriental Lodge, No 24, I. O. O. F., when the same shall have been incorporated by the legislature of North Carolina." It was subsequently incorporated. Though no conveyance by such trustees to the lodge is shown, the learned counsel for the plaintiffs admitted that the statute of uses (27 Hen. VIII.) in force in this state, by virtue of our statute executed the use without the execution of a deed. The grant to the trustees being in fee simple, the cestuique trust took in fee. Holmes v. Holmes, 86 N.C. 205. When the lodge ceased to exist for want of members, whether its property passed to the grand lodge of I. O. O. F. in this state, of which Oriental Lodge, No. 24, was a member, or escheated to the state for the university (Code,§ 2627), does not concern the plaintiffs, and is not before us. The title in fee simple had passed out of the grantor, and, having vested in the Oriental Lodge, upon the extinction of the latter as a corporate entity, its property by no just construction could return to those whose ancestor had conveyed it in fee upon receipt of the purchase money, which he and they have kept and enjoyed. The plaintiffs' counsel insist, however that at the time of the conveyance the Revised Statutes (chapter 26, § 17) provided that a corporation, unless otherwise specially stated in its charter, had existence for only 30 years; and, as there was no special provision in his charter, the grantor only parted with the property for 30 years, and held a resulting trust. But the conveyance was in fee, and a corporation limited in duration can take a fee-simple conveyance just as a natural being, whose existence is also limited. Either may convey away the property, and upon the death of either without having disposed of it the property will go to pay creditors, to heirs, to stockholders, or as an escheat, according to the circumstances; but in neither case is there is any reverter to the grantors. On the death of a corporation the property is usually administered by a receiver, and on the death of a natural person by the personal representative, or passes to the heirs. By the constitution of North Carolina (article 8, § 1) all corporations (if chartered since 1868) are subject to extinction at any time, or their duration can be abridged or extended, at the will of the legislature. It would now be a startling doctrine that upon the repeal of a charter all real estate, though conveyed to the corporation absolutely in fee simple, reverts, as at common law, to the original grantors, to the total exclusion and loss of creditors and stockholders. On the contrary, such property, when not held on a base or qualified fee, as was the case in State v. Rives, 27 N.C. 297 (though it has since been held that there are no qualified fees in this state,--School Com. v. Kesler, 67 N.C. 443), would be administered to pay creditors, the surplus being divided among the stockholders. If there were no stockholders, then the question might arise whether the property had escheated to the state; but certainly the grantors, upon such corporation becoming...