{ "id": 11271639, "name": "ANNIE H. CAMPBELL v. ELIZA W. CRONLY et al.", "name_abbreviation": "Campbell v. Cronly", "decision_date": "1909-04-14", "docket_number": "", "first_page": "457", "last_page": "472", "citations": [ { "type": "official", "cite": "150 N.C. 457" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "95 N. C., 362", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274213 ], "opinion_index": 0, "case_paths": [ "/nc/95/0362-01" ] }, { "cite": "101 N. C., 162", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650042 ], "opinion_index": 0, "case_paths": [ "/nc/101/0162-01" ] }, { "cite": "100 N. C., 111", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650087 ], "opinion_index": 0, "case_paths": [ "/nc/100/0111-01" ] }, { "cite": "54 N. C., 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8685660 ], "opinion_index": 0, "case_paths": [ "/nc/54/0159-01" ] }, { "cite": "23 N. C., 566", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2104274 ], "opinion_index": 0, "case_paths": [ "/nc/23/0566-01" ] }, { "cite": "17 N. C., 121", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8686160 ], "opinion_index": 0, "case_paths": [ "/nc/17/0121-01" ] }, { "cite": "45 N. C., 221", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8687930 ], "opinion_index": 0, "case_paths": [ "/nc/45/0221-01" ] }, { "cite": "93 N. C., 215", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "90 N. C., 284", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8692404 ], "opinion_index": 0, "case_paths": [ "/nc/90/0284-01" ] }, { "cite": "126 N. C., 218", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658987 ], "opinion_index": 0, "case_paths": [ "/nc/126/0218-01" ] }, { "cite": "135 N. C., 532", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660124 ], "opinion_index": 0, "case_paths": [ "/nc/135/0532-01" ] }, { "cite": "129 N. C., 9", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658413 ], "opinion_index": 0, "case_paths": [ "/nc/129/0009-01" ] }, { "cite": "120 N. C., 14", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656065 ], "opinion_index": 0, "case_paths": [ "/nc/120/0014-01" ] }, { "cite": "50 N. J. Eq., 574", "category": "reporters:state", "reporter": "N.J. Eq.", "case_ids": [ 99937 ], "opinion_index": 0, "case_paths": [ "/nj-eq/50/0574-01" ] }, { "cite": "31 N. J. Eq., 255", "category": "reporters:state", "reporter": "N.J. Eq.", "case_ids": [ 728993 ], "opinion_index": 0, "case_paths": [ "/nj-eq/31/0255-01" ] }, { "cite": "26 N. J. Eq., 79", "category": "reporters:state", "reporter": "N.J. Eq.", "case_ids": [ 534807 ], "opinion_index": 0, "case_paths": [ "/nj-eq/26/0079-01" ] }, { "cite": "33 Minn., 357", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 8877673 ], "opinion_index": 0, "case_paths": [ "/minn/33/0357-01" ] }, { "cite": "67 U. S., 606", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3465283 ], "opinion_index": 0, "case_paths": [ "/us/67/0606-01" ] }, { "cite": "110 U. S., 15", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3503737 ], "opinion_index": 0, "case_paths": [ "/us/110/0015-01" ] }, { "cite": "15 Cal., 259", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 2259262 ], "opinion_index": 0, "case_paths": [ "/cal/15/0259-01" ] }, { "cite": "86 N. C., 585", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274893 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/86/0585-01" ] }, { "cite": "85 N. C., 329", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11277735 ], "opinion_index": 0, "case_paths": [ "/nc/85/0329-01" ] }, { "cite": "37 N. C., 286", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8681953 ], "opinion_index": 0, "case_paths": [ "/nc/37/0286-01" ] }, { "cite": "38 N. C., 376", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2098249 ], "opinion_index": 0, "case_paths": [ "/nc/38/0376-01" ] }, { "cite": "146 N. C., 503", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271836 ], "opinion_index": 2, "case_paths": [ "/nc/146/0503-01" ] }, { "cite": "112 N. C., 569", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 2 }, { "cite": "71 N. C., 165", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11277304 ], "opinion_index": 2, "case_paths": [ "/nc/71/0165-01" ] } ], "analysis": { "cardinality": 1250, "char_count": 35789, "ocr_confidence": 0.456, "pagerank": { "raw": 1.7737075298252657e-07, "percentile": 0.7124720398756839 }, "sha256": "9556d05533041fdeeea2c940df3513e73f98799572538f2e9d0045217b889e63", "simhash": "1:8180cb716694c6d1", "word_count": 6274 }, "last_updated": "2023-07-14T18:55:20.077008+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ANNIE H. CAMPBELL v. ELIZA W. CRONLY et al." ], "opinions": [ { "text": "Connor, J.,\nafter stating the case: When this cause was before Us on appeal, at the last term, the purchaser of the land was not a party. We remanded the case, to the end that further parties be made, which has been done. The first question which confronts us is whether, in the present condition of ..the record, we can take jurisdiction and decide the several questions presented in regard to the title to the locus in quo. This Court has frequently entertained and''decided controversies wherein parties have entered into a contract to sell land and the purchaser has refused to comply because of doubts entertained in regard to the title. We have treated such suits as bills by the vendor against the vendee for specific performance. It is well settled, by uniform decisions of this and other courts of equitable jurisdiction, that the purchaser will not be required to take a doubtful title. It therefore became necessary to inquire into the vendor\u2019s title, which was sometimes done by a reference to the clerk and master, or a referee selected for that purpose. Bispham Eq., sec. 378; Gentry v. Hamilton, 38 N. C., 376. While the vendee will not be required to pay the contract price and take a doubtful or imperfect title, he may, if he so elect, and it be not inequitable, have a decree for such part of the land or such interest as the vendor can convey, with a deduction from the contract pirice. Mr. Bispham thus states the equitable doctrine: \u201cIt may sometimes happen that defects exist which render the property less valuable than the contract price, but which, nevertheless, may not be of so vital a character as to.induce the purchaser entirely to throw up his bargain. In such a case the equity of specific performance with compensation comes into play for the benefit of the vendee.\u201d Equity, 390. It is said, in the note to Seton v. Slade, 7 Ves., 265 L. C. Eq., Vol. II, part 11, 15: \u201cIt may be laid down as. a general rule, subject, however, to some exception, that a purchaser may, if he chooses, compel a vendor who has contracted to convey a larger interest in an estate than he has, to convey to him such interest as he is entitled to with compensation.\u201d Lord Eldon, in Mortlock v. Buller, 10 Ves., 315, says: \u201cFor the purpose of this jurisdiction, the person contracting under those circumstances is bound by the assertion in his contract, and if the vendee choose to take such as he can have, he has a right to that, and to an abatement, and the Court will not hear the.objection by the vendor that the purchaser' cannot have the whole.\u201d Jacobs v. Lock, 37 N. C., 286. In such cases it becomes necessary for the court to inquire into the state of the title of the vendor, to the end 'that it may mould its decree as to do complete equity to all of the parties. So, in this appeal, if the vendor so desires, he may, unless it would be inequitable, acquire, under his contract of purchase, at a reasonable deduction from the contract price, such interest, if any, as either of the vendors have a right to convey. There is, however, another ground upon which a majority of the Court are of the opinion that we have and are compelled to take jurisdiction and decide the controversy in regard to the disputed title. It is well settled that, prior to the statute of 1893, chapter 6, Revisal, sec. 1589, the jurisdiction of courts of equity'to entertain bills to remove cloud from title or to quiet title was restricted within well-defined limits. Busbee v. Macy, 85 N. C., 329; Busbee v. Lewis, ib., 332. In the opinions in these cases by Ruffin, J., this Court \u2019 adhered to the decisions in this and other States, many 'of which he cited and commented upon. Pearson v. Boyden, 86 N. C., 585, and cases cited.- The Legislature, at the session of 1893, enacted a statute for the purpose of enlarging the power of the .courts to entertain suits1 to quiet titles where the conditions were such that a possessory action could not be brought. Of course, if the plaintiff had a complete remedy by means of a civil action, there was no necessity for resorting to the statutory remedy. Pearson v. Boyden, supra. The material part of the statute is in the following words: \u201cAn action may be brought by any person against another who claims an estate or interest in real property adverse to him for the purpose of determining such adverse claim.\u201d\nProf. Pomeroy (4th Eq., sec. 139.6), after discussing the jurisdiction of courts of equity prior to the passage of this and similar statutes in other States, says: \u201cThe action has been greatly extended by statute, and in many States is the ordinary mode of trying disputed titles.\u201d\u2019 He gives, in a note, a list of the States in which the statutes have been enacted. He further says: \u201cIn almost every instance the statutes, either by express terms, or through broad and general language, allow the action to be maintained by persons having equitable titles; in other words, a plaintiff need not have a legal title. * * * Tbe statute is an enabling act, and tbe action may be brought against one or more claimants without regard to tbe interest or title \u2014 legal or equitable \u2014 which he, or the plaintiff, may have.\u201d The California statute is in the same words as ours. Chief Justice Field, in Curtis v. Sutter, 15 Cal., 259, says: \u201cIt is unnecessary for the plaintiff to delay seeking the equitable interposition of the court until he has been disturbed in his possession by-the institution of a suit against him and until judgment has been passed in such suit in his favor. It is sufficient if, whilst in the possession of the property, a party out of possession claims an estate or interest adverse to him. He can immediately, upon knowledge of the assertion of such claim, require the nature and character of the adverse estate or interest to be produced, exposed and judicially determined and the question of title be thus forever quieted. It does not follow from the fact that the suit is brought in equity that the determination of questions purely of a legal character in relation to the title will necessarily be withdrawn from the ordinary cognizance of a court of law. The court sitting in equity may direct, whenever in its judgment it may become proper, an issue to be framed upon the pleadings and submitted to the jury. * * * There is no difficulty in so conducting a suit, under the statute, as to fully protect the legal rights of the parties and, at the same time, to secure the beneficial results afforded by a court of equity in bills of peace \u2014 which is, repose from further litigation. Indeed, the remedy under the statute is eminently simple, direct and efficacious for this purpose.\u201d The Nebraska statute, being practically in the same language, was discussed by the same eminent jurist while a Justice of the Supreme Court of the United States-, in Holland v. Challen, 110 U. S., 15 (L. C. Ed., book 28, p. 52), when he said: \u201cAny person claiming title to real estate, whether in or out of possession, may maintain the suit against one who claims an adverse estate in it for the purpose of determining such estate and quieting the title. It is certainly for the interest of the State that this jurisdiction of the Court should be maintained and that causes of apprehended litigation respecting real property necessarily affecting its use and enjoyment should be removed; for so long as they remain they will prevent improvement and consequent benefit to the public. It.is a matter of every-day observation that many lots of land in our cities remain unimproved because of conflicting claims to them. * * * It is manifestly to the interest of the community that conflicting claims to property thus situated should be settled so that it may be subject to use and improvement. To meet cases of this character, statutes like the one in Nebraska have been passed by several States, and they accomplish a most useful purpose.\u201d It was held that the Federal courts would enforce the statutes when they had jurisdiction by reason of diverse citizenship. In Parish v. Perris, 67 U. S., 606, the Ohio statute was enforced. See, also, Fry v. Summers, 39 Pac. (Idaho), 1118, where the statute was in the same language as ours. In Walton v. Perkins, 33 Minn., 357, Mitchell, J., says: \u201cThis statute is intended to afford an easy and expeditious mode of determining all conflicting claims to land, whether derived from a common source or from different and independent sources.\u201d In Adler v. Sullivan, 115 Ala., Harrolson, J., says: \u201cThe statute is an extension of the remedy in equity theretofore existing for the removal of clouds on title.\u201d Discussing the equitable remedy, prior to the statute, he says: \u201cThis statute goes in advance of that remedy and in addition allows any person in peaceable possession of lands claiming to own the same, whose title thereto or any part thereof is denied or disputed, or where any other person claims, or is claimed or is reputed to own the same or' any interest therein or to hold any lien or encumbrance thereon, and no suit shall be pending to enforce or test the validity of such title, claim or encumbrance, to bring and maintain a suit in equity to settle the title to said lands and clear up all doubts and disputes concerning the same.\u201d In Holmes v. Chester, 26 N. J. Eq., 79, the Chancellor, discussing a similar statute, says: \u201cIt is highly remedial and beneficial. It should, therefore be construed liberally. It is a statute of repose. It deprives the defendant of no right. His claim may be tried at law if he desires it.\u201d So Beasly, C. J., in Jersey City v. Lembeck, 31 N. J. Eq., 255, says: \u201cThe inequity that was designed to be remedied grew out of the situation of a person in the possession of. land as owner, in which land another person claimed an interest which he would not enforce; and the hardship was that the person so in possession could not force his adversary to sue and thus put the claim to the test.\u201d Albro v. Dayton, 50 N. J. Eq., 574. This Court, in Daniels v. Fowler, 120 N. C., 14, held that it was not \u25a0necessary that plaintiff should be in possession of the property to maintain his action. In Rumbo v. Mfg. Co., 129 N. C., 9, it was held that when the alleged cloud upon the title was found to be invalid the Court should not dismiss the action, but should adjudge such invalidity and remove the cloud. The present Chief Justice said: \u201cIt was because the Legislature thought the equitable doctrines (as laid down in Bushes\u2019s case) inconvenient or unjust that the act (1893) was passed.\u201d Beck v. Meroney, 135 N. C., 532; McLamb v. McPhail, 126 N. C., 218. The statute provides that if the defendant disclaims title the cost is adjudged against the plaintiff. The wisdom of enlarging the power of the court to deal with the subject is manifest. It is highly important to qn\u2019ivate right and public interest that titles shall be rendered secure and certain. As said by Judge Field, it is a matter of common observation that in almost every town or city, lots either without any improvement, or such as have been erected in the past falling into decay \u2014 the growth and development of the town impeded by some obscure, uncertain cloud upon, or question in regard to, the title. In many cases, without the aid of the statute it is impossible to bring the claimants before the court and have them assert and \u201ctry out\u201d their claim. It sometimes happens that obscure contingent limitations imposed upon titles operate to impoverish an entire generation when, upon a careful judicial examination, the title may be cleared up, rights adjudged and property unfettered, bringing it either into market or enabling the owners to improve and receive an income from it. It is this evil which the Legislature has sought to remedy by providing a simple, inexpensive and efficient procedure which the courts, by reason of precedents from which they were unwilling to break away, were unable to afford. The unanimity with which the judges have recognized the wisdom of the legislation, giving it a liberal construction, has made it effective.\nThis brings ns to a consideration of the assignments of error made by both plaintiff and defendants to his Honor\u2019s judgment. The conveyance by Mr. London to Elanner, trustee, vests the legal title in him in fee, with a declaration of the use to Mrs. London, his wife, and Annie H. and Eliza W., his daughters, in fee, \u201cand to the survivors of them.\u201d Whatever difficulty we would have found in giving effect to these last words in a common-law conveyance, operating by livery of seizin, is obviated in a deed operating under the statute of uses in which the intention of the grantor may be effectuated. \u201cIt is a maxim of the common law that no estate can be limited upon a fee simple; or, in other words, an estate in fee simple cannot be made to cease as to one and take effect, by way of limitation, upon a contingent event, in another person. It is clearly settled that limitations of that kind may take effect by way 'of use.\u201d Coke Lit., 271 (note), cited by Mr. Justice Ashe, in Smith v. Brisson, 90 N. C., 284, where the authorities are collected. In Rowland v. Rowland,, 93 N. C., 215, the conveyance was to two children of the grantor in fee as tenants in common, \u201cand, upon the death of either one, then to the survivor and his or her heirs forever.\u201d Ashe, J., said: \u201cIts effect was to transfer the use to the two donees in fee, and upon the death of Ophelia to shift the use of her moiety to John and his heirs. By a shifting use a fee may be limited after a fee.\u201d After an interesting discussion of the subject, the learned Justice says: \u201cOur opinion is, a defeasible fee in common was given to Ophelia and John and, upon the death of Ophelia, the absolute fee vested in John as survivor, because such was the manifest intention of the donor, and because that construction is not in violation of any principle of law or rule of construction.\u201d Mordecai\u2019s Lectures, 871. This authority is conclusive to the effect that, by way of a shifting use, the beneficial interest in the entire property, upon the death of Mrs. London, vested in Annie H. and Eliza W. London in fee. Did it vest in them absolutely, or did the right of survivorship attach, carrying the equitable title, or'use, to the last survivor? It will be observed that the grantor uses the words \u201cand to the survivors of them.\u201d If controlling effect is given the word \u201csurvivors,\u201d the language of the deed is complied-with upon the death of Mrs. London, and the daughters take the entire estate absolutely. In Hilliard v. Kearney, 45 N. C., 221, Pearson, J., discusses the question of successive survivorships at much length. There the property was given to five daughters, with a proviso that if either of them died without issue, \u201cher part to be equally divided between her other sisters.\u201d . It was held that upon the death of the first sister without issue the shares of the survivors became absolute. He invokes the rule that when the language of the maker of the instrument leaves his intention in doubt, that construction will be adopted which will make the estate \u201cabsolute and indefeasible.\u201d It is said, in Cox v. Hogg, 17 N. C., 121, that in ascertaining whether a succession of survivorships is created, the Court will examine other parts of the will. In Fortescue v. Satterthwaite, 23 N. C., 566, the limitation was made to depend upon the death of either of the first takers without. children, when the property passed to \u201cthe children then living.\u201d These words were held to create a succession of survivorships. We have examined the cases in our reports, and, as said by Judge Battle, in Biddle v. Hoyt, 54 N. C., 159, it is difficult to extract any satisfactory principle from them. In Galloway v. Carter, 100 N. C., 111, the limitation was dependent upon \u201cany or either\u201d of the children dying without issue, etc. These words, together with others of like import, were held to create a succession of survivorships. In view of the use of the word \u201csurvivors,\u201d and the fact that the grantor attaches a limitation to the issue of his daughters, if either of them should die leaving issue, we' conclude that, upon the death of Mrs. London, the entire use or interest vested in the daughters in fee.\nThis would dispose of the appeal, but for the words which follow: \u201cProvided, however, that if the said Annie H. or Eliza W. London shall die leaving issue, then to the use of such surviving issue, who shall take the same per stirpes, and not per capitaThese words would create in the daughters a determinable fee and, upon the death of either, the use would shift and vest in the \u201csurviving issue,\u201d unless the super added words, \u201cthey to take per stirpes, and not per capita,\u201d denotes that the grantor used the word \u201cissue\u201d as synonymous with \u201cheirs\u201d and, by directing tbe title in the same channel as it would be carried by the canons of descent, make the children and grandchildren of his daughters take by descent and not by purchase. \u00a5e think that it was the intention of Mr. London to settle the property, in the event which has happened \u2014 the death of his wife \u2014 \u25a0 upon his daughters, with a limitation to their children and the children of such of them as should predecease their parents, and that he used the words that they should take \u201c\u2022per stirpes, and not per capita\u201d to -remove any doubt in respect to the interests which they would take. Having given it to the daughters in fee, he certainly could not have intended to attach a limitation for their issue, which was ineffectual and left the estate in the same plight as it was by the language first used. He intended that the word \u201cissue\u201d should include grandchildren of his daughters whose parents had predeceased them, with the 'provision that such grandchildren should take by representation \u2014 that is, the shares or interest which their deceased parent would have taken if surviving. When language is used having a clearly defined legal signification, there is no room for construction to ascertain the intent; it must be given its legal meaning and effect. This is illustrated by what is said in Leathers v. Gray, 101 N. C., 162, in which Merrimon, J., says: \u201cThe real intention must have effect, but the real intention recognized and enforced by the law is that expressed in the will, and this is' to be ascertained by a legal interpretation of the language employed to express it,\u201d or, as the learned Justice says, in the same case, \u201cHe must express his intention in words appropriate and sufficient to express his real meaning, and if he employs technical legal words, the technical meaning must prevail, unless the same shall be qualified, or modified, by superadded words in the will.\u201d When, however, the words of limitation are of doubtful meaning, or their usual meaning, as used, is rendered doubtful by superadded words and we are compelled to resort to construction, they must, if possible, be given such construction as will effectuate the, intention of the maker of the deed or will. The word \u201cissue\u201d has been construed to include grandchildren when it was manifest that it was so intended, just as the word \u201cheirs\u201d has been restricted to children when words are superadded showing such intention. Mills v. Thorn, 95 N. C., 362. If by this deed the limitation bad been to the children of Annie II. and Eliza W. and the children of such as should die before their ancestor, such children to take the share of their parent by representation, it is clear that the rule in Shelley\u2019s ease would not have operated to vest in the daughters the fee. If by construction we give the words used by Mr. London the same meaning, the same result would follow. The other limitations are eliminated by the death of Mrs. London, leaving Annie II. and Eliza W. living and the deed from the children of Mr. London to Mrs. Campbell and Mrs. Cronly.\nWe conclude, therefore, that his Honor correctly held that the plaintiff Mrs. Campbell and the defendant Mrs. Cronly cannot convey to the purchaser a good and indefeasible title to the locus in quo. The conveyance by James Douglas Campbell to his mother vests in her his interest, but if he should die leaving issue before his mother, such issue would take as a purchaser under the limitation in the deed.\nThe' judgment must' be\nAffirmed.", "type": "majority", "author": "Connor, J.," }, { "text": "Brown, J.\nI concur in the opinion written by Mr. Justice Oornior in this case so far as .it passes upon the title to the property contracted to be sold by Annie II. Campbell and Eliza W. Cronly and holding that they cannot make to the purchaser London a good and indefeasible title in fee.\nAt a former term we remanded the cause, to the end that the purchaser be made a party, which has been done. Having then treated the matter as a bona 'fide controversy submitted without action, under our Code, to compel specific performance of a contract to purchase land, and our order having been complied with, I see no reason now why the controversy should not be determined.\nWe have heretofore treated such controversies submitted without action upon agreed facts, where bona fide, as bills in equity by the vendor against the vendee for specific performance.\nI do not agree, however, that the act of 1893, referred to in the opinion, will permit any kind of a dispute about the title to land to be brought before the courts under tbe guise of a \u201ccontroversy submitted without action,\u201d simply to obtain the opinion of the court upon an abstract proposition or a moot point in a matter where no present relief can be had or no final judicial process issued. -\nAs there is nothing -in the record which.impeaches the bona fide character of this controversy between vendors and vendee, I concur that the judgment of the Superior Court should be affirmed.", "type": "concurrence", "author": "Brown, J." }, { "text": "Clark, C. J.,\ndissenting: In the case on appeal it is stated: \u201cThis action is brought by the plaintiff against the defendants to determine the rights and liabilities of the several parties hereto in a certain lot of land, located in the city of \"Wilmington, New Hanover County, of this State. It is agreed by the parties hereto that the facts upon which the controversy depends may be submitted to the court as in an action without controversy, and judgment may be entered thereon, subject to the right of either party to appeal therefrom to the Supreme Court.\u201d\nThe proceeding proves, on examination,' to be two interrogatories submitted to the Court to ascertain its opinion as to what are the respective interests of two persons in a certain lot, without any real litigation, and there is nothing that the judgment of the Court can act upon. Accordingly, the judgment of the court below is merely an opinion, or legal advice, as to the respective rights or interests of the parties in the property. Had the property been Sold by order of court for partition, the question now asked us might have been presented upon appeal from the judgment distributing the proceeds, and it might come up in other ways, in a real litigation. But as now presented it is simply a \u201cmoot\u201d point, and the Court is asked to give its opinion, as a matter of advice or legal information. The Court is asked to pass its opinion upon an abstract proposition, in a matter in which it cannot adjudge, or direct that the parties themselves, or the officers of the law, shall take any action. This is not a matter of which the courts will take jurisdiction. McKethan v. Ray, 71 N. C., 165; Board of Education v. Kenan, 112 N. C., 569. It is the function of counsel, not of tlie courts, to advise parties as to tbeir rights, and answer interrogatories as to the law, as herein propounded.\nA case exactly \u201con all fours\u201d is Heptinstall v. Newsome, 146 N. C., 503, in which Brown, Jspeaking for a unanimous court, says: \u201cThe advisory jurisdiction of courts of equity is primarily confined to trusts and trustees, which includes executors, as far as their rights, powers and duties under the will are concerned,\u201d and then, after citing authorities, sums up: \u201cThis is not an action brought by the plaintiff against some person claiming an estate or interest in the tract devised to him, but is evidently a proceeding brought in .the interest of the several devisees of parcels of land to settle and determine all their respective rights arising under the will in present\u00ed and in futuro in which the executors, as such, have no interest. The appeal and the action are dismissed.\u201d'\nIt would add immensely to the volume of business in the courts if any two or more parties could at will propound interrogatories to the courts as to matters about which they are in doubt. \u201cSubmission of a controversy without action\u201d was intended only to dispense with summons and pleadings, where there is a real controversy in which the court can render judgment as in any other action. It was not intended to devolve upon the courts the duty of answering legal questions without any 'judgment to put the opinion into effect. The two interrogatories submitted to the Court are solely as to what are the respective interests of Mrs. Campbell and Mrs. Cronly in the land, whether each owns one-third or one-half interest therein, and present only a moot point; especially is this so, since the Court holds that they cannot convey it.\nCourts decide legal propositions, not as advisory counsel, but only when necessary in determining the relief to be adjudged.", "type": "dissent", "author": "Clark, C. J.," } ], "attorneys": [ "Empie & Empie for plaintiff.", "Meares & Ruark for defendant." ], "corrections": "", "head_matter": "ANNIE H. CAMPBELL v. ELIZA W. CRONLY et al.\n(Filed 14 April, 1909.)\n1. Deeds and Conveyances \u2014 Purchaser\u2014Doubtful Title \u2014 Suits\u2014 Courts \u2014 Equity Jurisdiction \u2014 Specific Performance.\nA purchaser of land is not required to take a doubtful title; and when parties have entered into a contract to sell land, and the purchaser has refused to comply because of doubts entertained in regard to title, the court will treat an action by the vendor against the vendee as a bill for specific performance.\n2. Deeds and Conveyances \u2014 Doubtful Title \u2014 Actions\u2014Cloud on Title \u2014 Courts\u2014Statutory Jurisdiction.\nThe Revisal, sec. 1589 (Laws 1893, ch. 6), enlarges the power of the courts to entertain suits to quiet titles, where the conditions were formerly such that a possessory action could not be brought; and this statute is liberally construed, so that the court can acquire jurisdiction to clear up obscure contingent limitations which are imposed upon titles.\n3. Same \u2014 Controversy Without Action.\nThe courts will hear and determine a controversy subniitted without action in suits brought by and against the parties in interest, wherein the vendee has refused to accept the title on the ground of its being doubtful, either in its equitable jurisdiction as treating the controversy as a bill for specific performance or under the provisions of the Revisal, sec. 1589, for the purpose of removing clouds upon obscure titles.\n4. Deeds and Conveyances \u2014 Estates\u2014Uses and Trusts \u2014 fLimitations Upon Fee \u2014 Equity.\nAn estate to one, with a declaration of the use to grantor\u2019s wife and two named daughters, in fee, \u201cand to the survivors of them,\u201d will, nothing else appearing, vest the use of the fee in the two daughters after the death of the wife; for, though no estate could be limited upon a fee simple, at common law, a limitation of this' kind may take effect by way of a shifting use.\n5. Deeds and Conveyances \u2014 Uses and Trusts \u2014 Estates\u2014Construction-Intent \u2014 Language Used \u2014 Legal Phrases \u2014 Determinable Fee.\nAn estate to one, with a declaration of the use to grantor\u2019s wife and two named children, in fee, \u201cand to the survivors of them,\u201d the conveyance further providing that if the said daughters \u201cshall die leaving issue, then to the use of such surviving issue, who shall take the same per stirpes, and not per capita,\u201d dpes not vest the fee in the' daughters upon the death of the wife; the grantor\u2019s intent appearing, both from the usual and legal significance of the language employed, to create in the daughters a determinable fee, and, upon the death of either, the use would shift and vest in the \u201csurviving issue.\u201d\n6. Deeds and Conveyances \u2014 Estates\u2014Descriptive Words \u2014 Legal Phrases \u2014 Construction.\nWhen the language employed in a conveyance of land as to the estate passed thereby has a clearly defined legal signification, there is no room for construction to ascertain the intent; and when the intent of the grantor appears from the use of customary language to be that given by law to the legal phrases also used in connection with the subject matter, the latter will be construed as showing that the grantor desired to remove any doubt as to the interest conveyed.\n7. Same \u2014 Living Issue \u2014 Succession of Survivorship \u2014 Purchasers\u2014 Estates. \u25a0\nAn estate in trust to the use of grantor\u2019s two daughters, providing in the deed that if said daughters \u201cshall die leaving living issue, then to the use of such surviving issue, who shall take the same per stirpes, and not per capita,\" creates a succession of survivorships in the living children and grandchildren of the daughters, who may take as purchasers upon the happening of the event, and the daughters named cannot convey to a purchaser a good and indefeasible title.\n8. Deeds and Conveyances \u2014 Succession of Survivorship \u2014 Children and Grandchildren \u2014 Purchaser.\n\"When a deed in trust creates a succession of survivorships, in the use of lands, to the children and grandchildren of B. and C., a deed from a child of C. to the locus in quo in the lifetime of B. and C. vests in him his interest only; so that, if the. child should die, leaving issue, before the death of his parent, such issue would take as a purchaser under the limitations declared.\nBbown, J., concurring in part; Clark, C. J., dissenting.\nActioN tried before W. R. Allen, J., upon an agreed state of facts, at January Term, 1909, of New Hanovee.\nBoth, sides appealed.\nThis is a controversy submitted without action for tbe purpose of quieting title to real estate pursuant to section 1589 of tbe Revisal.\nTbe agreed facts are: On 20 May, 1869, H. 0. Brock conveyed to 'William B. Manner tbe land in controversy, being a lot in tbe city of \"Wilmington, upon certain trusts, fully set forth in tbe deed, which was duly admitted to pr\u00f3bate and registration. On 2 March, 1895, certain persons, entitled to beneficial interest in said property, instituted an action in tbe Superior-Court of New Hanover County against certain other persons, likewise interested, and tbe heirs at law of tbe trustee, who bad died, for tbe purpose of having certain corrections made in said deed, all of which will fully appear by reference to tbe record in said cause, made a part of tbe case agreed. Pursuant to tbe prayer of tbe plaintiffs, judgment was rendered by said court correcting said deed by inserting words \u201cof inheritance\u201d therein, which bad been inadvertently omitted by tbe draughtsman. Tbe deed, as corrected by said judgment, vested tbe title to said real estate in tbe said W. B. Planner,' in fee, upon tbe following trusts: To bold for tbe use of Emily B. London, her heirs and assigns, wife of Mauger London, and Annie H. London, her heirs and assigns, and Eliza W. London, her heirs and assigns, children of tbe said Mauger London, and tbe survivors of them. Provided, however, that if tbe said Annie H. London or Eliza W. London shall die leaving issue, then to tbe use of such surviving issue, who shall take tbe same per stirpes, and not per capita: And provided further, that if tbe said Annie H. or Eliza W. should die without issue, leaving the said Emily B. surviving, then to the use of the said Emily B. and such survivors; and if the said Annie H. and Eliza W. should die, leaving the said Emily B. surviving, then to the use of the said Emily B. during her life; and if she should die leaving issue, then to the use of such issue and their heirs; and if the said Emily B. should die, leaving the said Annie H. or Eliza W. surviving, then to the use of such survivors. And in case of the death of the said Emily B., Annie H. and Eliza W. without issue, the^ to the surviving children of the said M. London and their issue, if any such said children be living, to take per stirpes, and not per capita. Mauger London, who is mentioned in the said deed, died intestate on 10 May, 1894. He left him surviving his wife, Emily B. London, and, by a former marriage, his child, Annie H. London. Emily B. London, who was the second wife of Mauger London, and who is mentioned as one of the beneficiaries under the aforesaid deed, died on 6 June, 1897, leaving her surviving Eliza \"W\". Cronly, her only child and sole heir at law. On 16 March, 1903, all of the heirs of Mauger London executed their deed toAnnie H. Campbell and Eliza \"W. Cronly, conveying any and all such right, title and interest which they had in said real estate. Said deed was duly proven and recorded. Annie H. London married Archibald E. Campbell. The only child by 'this union was J ames Douglas Campbell, now living. Eliza W. London married Joseph M. Cronly, and is now a widow. By her marriage she has had three children, to wit: Jean Murphy, Robert Dixon and Margaret Cronly, all of whom are minors, but in this proceeding are represented by George H. Howell, their duly appointed guardian ad litem. The said Annie H. Campbell and Eliza W. Cronly, claiming that as tenants in common they are the owners in fee of the said property, agreed to sell the same for the sum of twelve thousand dollars to the defendant, John London, but he is advised that the said parties are not seized in fee of the said property, and have only a life estate therein, and that upon the determination of the life estate the property descends to their issue, and he declines to purchase the property until it is determined whether the said parties have a life estate or fee simple in said property; but if it is adjudged ,that they have a right to convey, he stands ready, and is able, to comply with his contract of purchase. Eliza W. Cronly contends that she has an undivided two-thirds (%) interest in the property; that the deed of trust from Brock to Flanner vested a fee simple in Emily B. London, her mother, Annie H. Campbell, and herself, each having an undivided one-third (%) interest therein; that, by the death of Emily B. London, her mother, she, the said Eliza W. Cronly, inherited, as her sole heir, the undivided interest vested in-the said Emily B. London, and that by reason thereof and her own one-third interest in her own right she is vested with an undivided two-thirds interest in the fee in said property. Annie H. Campbell contends that by the deed of trust from Brock to Flanner the property vested in Emily R. London, Eliza W. London and herself, and, upon the death of the said Emily B. London, by sur-vivorship, the fee vested in Annie H. Campbell and Eliza W. London, in equal parts, and therefore she contends that she has an undivided one-half (%) interest therein. The minor defendants, Jean Murphy Cronly, Robert Dixon Cronly and Margaret Cronly, by their guardian ad litem, George H. Howell, make no contention in regard to the title to said premises, but will abide the judgment of the court upon the facts here agreed as to any rights, future or contingent, they might have under the deed of Brock to Flanner, trustee.\nHis Honor was of the opinion, upon the foregoing case agreed, that the plaintiff, Mrs. Annie H. Campbell, and the defendant Mrs. Eliza W. Cronly were the owners in the proportion of one-half each of the real estate in controversy; that upon the death of each their interest will pass to their \u201cheirs at law, such heirs to take per stirpes\u201dj that they could not convey the land in fee simple to the purchaser. Judgment was rendered accordingly. Plaintiff, Mrs. Campbell, and defendant Mrs. Cronly assigned error and appealed.\nEmpie & Empie for plaintiff.\nMeares & Ruark for defendant.\nwalker, J., did not sit." }, "file_name": "0457-01", "first_page_order": 501, "last_page_order": 516 }