Greenleaf v. Land & Lumber Co. , 146 N.C. 505 ( 1908 )

CONNOR, L,

after stating the case: Defendants insist that the plaintiff cannot maintain the action, for that the corporation, the Land and Lumber Company, has not been dissolved in accordance with the provisions of the statute (Revisal, sec. 1196). It must be conceded that a proceeding instituted and prosecuted pursuant to the statute would have been more orderly. We can perceive no good reason, however, for dismissing this action, wherein all parties in interest are now or, under his Honor’s order, will be brought into court and the same relief awarded as if tbe provisions of tbe statute bad been complied with. TIis Honor’s order is in strict accord with that which would have been made in tbe statutory proceeding. Tbe receiver will, under tbe orders of tbe court, sell tbe property, after ascertaining tbe names of the creditors, if there be any, and tbe amounts due them, and the interest of tbe stockholders. Tbe title to tbe property of tbe corporation is vested in it upon these trusts. Before any final judgment is rendered, a dissolution will be declared and tbe fund administered in accordance with tbe rights of tbe parties. This is an equitable proceeding, and it is competent for tbe court, under its jurisdiction, to administer trust funds and mould its decrees so that tbe rights of all beneficial owners are protected.

Tbe defendants insist that tbe deed, or paper-writing, executed by William and Joseph Underwood on 25 September, 1869, is ineffectual to convey tbe title, because Underwood could not be tbe grantor and grantee in tbe same deed. His Honor concurred in that view and held that tbe deed was a valid declaration of a trust, thereby attaching to tbe legal title, which remained in Underwood, an express trust for tbe corporation. We concur with bis Honor’s opinion. Tbe recitals in tbe deed show that tbe property was purchased by Underwood as agent for tbe corporation. Tbe declaration of trust is sustained by these recitals and a recited valuable consideration. The learned counsel for defendants insists that no express trust is declared, but that tbe paper-writing is only evidence upon Avhieh the court may declare a trust; that tbe plaintiff, claiming through tbe corporation, is barred from enforcing this equity by lapse of time. It is conceded that, if tbe premises be correct, tbe conclusion follows. Tbe statute never runs -against tbe enforcement of an express trust until by some declaration or act of tbe trustee an end is put to tbe relation of trustee and cestui c[ue trust, and tbe latter is put to bis action. If tbe equity consists of a right on tbe part of tbe plaintiff to call upon tbe court to declare tbe bolder of tbe legal title a trustee for any of tbe causes recognized by courts of equity, tbe statute runs from tbe time tbe right or cause of action accrues. Tbe distinction is universally recognized and enforced; it is conceded by tbe learned counsel for defendants. He seeks to bring tbe case witbin tbe class of trusts created by operation of law or tbe decree of tbe court. We concur with bis Honor that tbe language of tbe deed executed by Under-wood is a declaration of an express trust, and that no act bas been done by Underwood or bis representatives to put an end to tbe relationship. They never took actual possession of tbe land or asserted any ownership inconsistent with tbe declaration in tbe deed. It seems that, some seven years ago, the land was purchased by defendant Zimmerman for taxes, and be entered into possession. Judgment was rendered adversely to bis claim, and be does not appeal. Tbe interlocutory judgment of bis Honor must be affirmed. Tbe receiver will proceed as directed. Let this be certified.

Affirmed.