#### B. E. BATTEN v. CORPORATION COMMISSION OF NORTH CAROLINA et al.

(Filed 24 September, 1930.)

Life Estates B b — Remainderman must have good vested title in order to bring an action for waste against life tenants.

In an action to recover for waste against a life tenant it is required that the remainderman have a good and not a doubtful title, and where the plaintiff in an action therefor claims as heir at law of the’ grantor who had conveyed the property to B. for life, then to B.’s children, the title of the plaintiff depends upon the death of B. without children, and he cannot maintain the action. C. S., 888.

Appeal ,by plaintiff from Sinclair, J., at February Term, 1930, of JohNstoN.

Affirmed.

This action for the recovery of damages for waste, and for the forfeiture of tbe life estate of O. I. Batten, under whom defendants claim title to the land described in the complaint, O. S., 888, ei seq., was heard on plaintiff’s motion that the temporary restraining order be continued to the final hearing and that a receiver be appointed, pendente lite, with authority to take possession of the land and ‘to collect the rents and income therefrom.

From judgment denying the motion, dissolving the restraining order, and declining to appoint a receiver, plaintiff appealed to the Supreme Court.

R. L. Ray, Sr., for plaintiff.

I. M. Bailey for defendant.

CoNNort, J.

Defendants are in possession of the land described in the complaint, claiming an estate therein per autre vie.

This land was conveyed in 1898, by J. M. Batten and his wife to O. I. Batten for his lifetime, and then to his. children. It was not made to appear at the hearing that C.’ I. Batten is dead. He has no living children and is now 55 years of age. Plaintiff claims title to an undivided four-fifths interest in said land, subject to the life estate of O. I. Batten. He is one of five children of J. M. Batten; three of said children have conveyed to plaintiff all their right, title and interest in and to said land.

It is manifest that plaintiff’s title, if any, to the remainder in said land, after the death of C. I. Batten, is not sufficient to sustain this action. Hough v. Martin, 22 N. C., 379. In an action for the recovery of damages for waste, committed by a life tenant, the plaintiff must establish 'a good, ánd not a doubtful title to the remainder. The judgment is

Affirmed.