#### HIRAM BAGGETT v. C. J. SMITH and C. H. SEXTON, Trustees of the estate of SARAH M. ANDREWS, and E. F. YOUNG, Trustee.

(Filed 28 October, 1925.)

1. Estates — Wills—Trusts—Contingent? Interests — Vested Rights — Executors and Administrators.

A devise of an estate in trust for the testator’s son and wife for life and to the testator’s grandchildren of the marriage until the youngest child becomes 21 years of age, with certain contingent limitations over to their children, but in the event of the death of such grandchild or grandchildren in the lifetime of their parents, the others surviving should take their interest: Held, the testator’s grandchildren acquired a vested interest in the estate at the time of the testator’s death, the future enjoyment of the possession of which was fixed at the coming of age of the youngest child; and the trustee could convey a fee-simple title.

2. Judgments — Estoppel—Process—Partition—Defects Cured.

A defect of service of summons on a mental incompetent in proceedings to sell lands to make assets, may be cured by thereafter aptly and in due time moving in the cause and curing the defects, and the question of mental capacity thus concluded by the judgment of the court will become final by failure to appeal therefrom.

3. Deeds and Conveyances — Warranty—Breach—Damages.

In order to maintain an action on a breach of warranty in a deed, the complainant must show his eviction or some injury in respect to the title conveyed to him, before action commenced.

4. Same.

Under an executor’s deed to lands without a warranty, the grantee cannot recover as damages against him an amount he claims to have lost by reason of defective title and his consequent failure to sell to another at a profit.

Appeal by plaintiff from Lyon, J., at March Special Term, 1925, of Harnett.

Affirmed.

By virtue of a judgment of tbe Superior Court of Harnett County rendered at tbe September Term, 1920, in an action entitled “George E. Prince, surviving executor of Sarab E. Andrews, deceased, v. James C. Andrews, Rory Andrews, and J. C. Andrews, Jr.,” said George E. Prince as surviving executor executed and delivered to tbe plaintiff a deed in fee for a tract of land containing 823 acres at tbe price of $20,000. Tbe plaintiff paid $3,000 in cash and executed bonds for tbe remaining $17,000 and secured tbeir payment by a deed of trust on tbe land, in wbicb E. F. Young was n'amed as trustee. Tbe plaintiff alleges tbat tbe deed from Prince, executor, and tbe proceeding authorizing its execution represented tbe title to be good, but it was defective in tbat Rory Andrews, an beir at law of Sarab Andrews, bad not been served *355witb process and bad not consented to tbe sale; and further, tbat said Rory was not of sufficient mental capacity to attend to bis ordinary business affairs and bad not been represented by a guardian; and tbat tbe plaintiff filed a petition and motion in tbe proceeding above referred to for tbe purpose of curing tbe alleged defects. Plaintiff asks tbat tbe deed executed to bim by Prince, executor, be canceled, tbat tbe bonds and tbe cash payment of $3,000 be returned to bim, and tbat there be an accounting in which be shall be credited witb improvements and charged witb rents and profits.

Tbe defendants (Smith and Sexton having been appointed trustees after tbe death of George E. Prince) filed an answer admitting certain allegations, denying others, and praying judgment for tbe amount due on tbe bonds and for a foreclosure of tbe deed of trust. Upon tbe bearing tbe plaintiff’s cause of action was dismissed and judgment was given in favor of tbe defendants for $17,000, witb interest, and for a sale of tbe land for foreclosure. The plaintiff excepted to tbe judgment and appealed.

Charles Boss and Biggs & Broughton for plaintiff.

Clifford & Townsend for defendants.

Adams, J.

Tbe plaintiff contends tbat the deed executed to bim by George E. Prince as surviving executor on 18 September, 1920, did not convey a perfect title by reason of irregularities in tbe special proceeding by which tbe deed was authorized. In tbe will of Sarah M. Andrews are tbe following items:

(1) It is my will and desire and direction tbat my executors shall bold and retain possession of all' of my property of every kind and description during tbe lifetime of my son Joseph and bis wife, Janie O. Andrews, and until their youngest child shall become twenty-one years of age. During said period my said executors are to have power to make such changes in my personal estate as in their judgment may be necessary and proper. They may collect my securities when they mature and reinvest tbe amount so collected as they may deem proper and necessary for tbe best interest of my estate, and they are to use such sum from tbe income of my estate as may be necessary to protect and care for tbe same and meet all lawful charges against tbe same.

(2) It is my will, desire and direction tbat my executors shall pay over to my son Joseph so much of tbe net income from my estate as may be necessary to support himself and family, and in case of his death before bis wife, then she and her children, tbat is to say, tbe children of my son Joseph, are to receive out of tbe net income from *356my estate suck amount from time to time as may be necessary for tbeir maintenance and support. After tbe death of my son and bis wife, tben tbeir children are to be provided with a support out of said income until tbe youngest shall become of age.

(3) It is my will, however, and direction that after tbe death of my son and bis wife, each child shall receive tbe sum of one thousand dollars, when such child shall become of age, and my executors are directed to provide for the education of my son’s children before they come of age. While it is my intention that my executors shall decide how much of the income from my estate shall be necessary to be expended from time to time for the support of my son and his family, I yet desire and direct that they provide for the comfort, support and reasonable pleasure of him and his family. After my executors shall have paid out of the income from my estate all the sums directed by me to be paid in this will, they are to add any balance remaining in their hands to the principal at the end of each year, and said executors to make annual returns and reports to the proper officials so long as my estate shall remain in, their hands.

(4) After the death of my son Joseph and his wife, and when thereafter his youngest child shall become of age, then I give, bequeath and devise all of my estate then remaining, both real and personal, unto the children of said Joseph C. Andrews, or the lawful heirs of any deceased child, to have and to hold to them and their heirs absolutely in fee simple forever, to be divided amongst said children and the heirs of any deceased child as provided by the laws of the State.

Joseph C. Andrews died 7 March, 1920, leaving surviving him his widow and two children, Rory and Joseph C. Andrews, Jr. Judge Devin’s judgment authorizing a sale of the land to the plaintiff was rendered 6 September, 1920; and in the proceeding Joseph C. Andrews, Jr., the only minor, was represented by a guardian ad litem, and according to a recital in the judgment Rory Andrews had been duly served with process by publication.

It is said that until the death of Janie C. Andrews, the life tenant, and until the younger of the two children shall have reached the age of twenty-one, it cannot be known who will take under the will, whether Rory and Joseph, or the heirs of one of them or of both. Evidently, however, the testatrix did not intend to create such a contingency. She directed the executors to retain possession of all her property during the life of her son and his wife and during the minority of their youngest child, and devised the land in controversy to the children of her son after his death and the death of his wife, deferring the children’s actual possession, however, until the youngest child should *357arrive at tbe age of twenty-one years. If either of the children had died during the lifetime of the father and mother his interest would have gone to his lawful heirs by express direction. In Ziegler v. Love, 185 N. C., 40, we had occasion to say: “Estates considered with regard to their certainty and to the time when they may be enjoyed are distinguished as vested and contingent. When there is an immediate fixed right of present or future enjoyment an estate is vested — vested in possession when there exists a right of. present enjoyment, and vested in interest when there is a present right of future enjoyment.” In effect the executors were made trustees to preserve the estate in which the children acquired a vested interest in the sense of a present right of future enjoyment — the clause, “When thereafter his youngest child shall become of age,” merely indicating the time fixed for the future enjoyment of the vested interest.

The plaintiff also contends that.Eory Andrews was not properly made a party to the special proceeding and that his interest in the land was not thereby affected; and, moreover, that he was mentally incompetent when the proceeding was instituted. In reference to this objection the record discloses these facts: Some time after Judge Devin had ordered that the land be sold to the plaintiff (6 September, 1920), the plaintiff filed a petition in the Superior Court to have certain alleged defects in his title cured or the conveyance set aside. Judge Allen made an order (November Term, 1922) that the trustees, C. J. Smith and C. H. Sexton, and Janie C. Bell (Andrews), Eory Andrews and J. C. Andrews, Jr., appear on 20 November, 1922, and answer the plaintiff’s petition, declaring their interest if any in the land. J. L. Hatcher was appointed guardian ad litem of J. C. Andrews, Jr., and an answer and a reply were duly filed. The reply called in question the mental capacity of Eory Andrews and at the November Term, 1923, a guardian ad litem was appointed to represent his interest. One year afterward (November Term, 1924) the cause again came on for hearing before Judge Devin and he found as a fact that the sale of the land made by George E. Prince, executor, under a decree of the court was for the benefit of all the parties, including Eory Andrews, and thereupon adjudged that the sale made to the plaintiff by George E.' Prince, executor, be again ratified, approved, and confirmed. From this judgment there was no appeal. The plaintiff, then, has the final judgment of a court of competent jurisdiction rendered in an action in which all who had an interest adverse to his were made parties; also a deed from Eory Andrews for his interest in the land, dated 13 November, 1922, expressly affirming and assenting to the deed executed by George E. Prince, executor. .

*358It is finally contended by tbe plaintiff tbat tbe maker of bis deed knew be was buying tbe land for tbe purpose of developing and selling •it; tbat after making improvements thereon be was offered $22,500 for it and tbat be was unable to make tbe sale by reason of a claim asserted by Rory Andrews. It appears, however, tbat there is no warranty of title in tbe plaintiff’s deed; tbat tbe grantor was acting in tbe capacity of surviving executor, and executed tbe deed under a judgment of tbe Superior Court. Besides all this, even if there bad been a warranty there is no evidence tbat tbe plaintiff has been evicted, or tbat bis possession has been disturbed. Lockhart v. Parker, 189 N. C., 138, 143; Cover v. McAden, 183 N. C., 641, 644; Cedar Works v. Lumber Co., 161 N. C., 614; Griffin v. Thomas, 128 N. C., 310.

We see no sufficient cause to disturb tbe judgment and it is hereby

Affirmed.