Monroe v. . Trenholm , 112 N.C. 634 ( 1893 )

It was agreed that the case should be submitted to the court upon the admissions in the pleadings and the exhibits.

On 1 October, 1867, E. L. Trenholm executed the following (635) deed of settlement:

STATE OF NORTH CAROLINA — Henderson County.

Whereas, it is may desire to secure to Eliza Bonsal, my wife, and to her children, a portion of my real property: Now, therefore, in consideration of the sum of one dollar to me in hand paid, and for the purposes above mentioned, I have this day bargained and sold, and by these presents do bargain and sell, unto my son, Savage Deas Trenholm, to him and to his heirs forever, all my right and title and interest in a certain tract of land lying and being in the State and county aforesaid, known as the Mountain Lodge place. . . .

To have and to hold, all and singular, the said three hundred and fifty-nine acres of land, more or less, and all the singular the premises and appurtenances to the said Savage Deas Trenholm, his heirs and assigns forever, in trust, nevertheless, for the following uses and purposes, and no other: In trust for the sole use and benefit of the said Eliza Bonsal Trenholm and her heirs forever, and I do hereby authorize and empower the said Savage Deas Trenholm, the trustee aforesaid, at any time to dispose of all and singular the lands aforementioned, when so required by the said Eliza Bonsal Trenholm, and to invest the proceeds as she may direct.

In witness whereof I have hereunto set my hand and seal, this 1 October, 1867.

E. L. TRENHOLM. [L. S.]

On 14 November, 1889, the said Eliza B. Trenholm, mentioned as beneficiary under the first deed, being then and now a widow, executed a deed for a part of said land to the plaintiff, as trustee for her daughter.

The court rendered judgment that the defendant execute and (639) deliver a deed in fee for the land described in the complaint, to the plaintiff William Monroe, trustee, as prayed for in said complaint, and that the plaintiff recover possession of said land and the costs of this action. And it is further ordered that the effect of this decree shall be to transfer to William Monroe, trustee, the legal title of the said property to be held in the same plight, condition, and estate as though the conveyance ordered was in fact existing, and that the clerk of this court, upon the application of the plaintiff, issue to the sheriff of said county a writ of possession commanding him to put the plaintiff in possession of the said land.

From this judgment the defendant appealed. The deed executed in 1867 was a post-nuptial settlement by which E. L. Trenholm conveyed to his son, S.D. Trenholm, the land in controversy in trust for the sole use and benefit of his wife, Eliza B. Trenholm, and her heirs forever, and authorized and empowered said trustee at any time to dispose of the lands . . . when so required by the said Eliza, and to invest the proceeds as she might direct. It will be observed, also, that the recital with which the deed begins declares that "whereas it is my desire to secure to Eliza Bonsal, my wife, and to her children, a portion of my real property," etc. Whether a conveyance of land or personalty be made before or after marriage, if its purpose is to place the property in the hands of a trustee for the sole and separate use of a married woman, the rule which must govern in passing upon any attempted alienation by her is that she has no power of disposition except such as is clearly given in the instrument. Kemp v. Kemp,85 N.C. 491; Hardy v. Holly, 84 N.C. 661; Mayo v. Farrar, ante 66; Knox v. Jordan, 58 N.C. 175. The power to convey was conferred upon S.D. Trenholm, and was to be exercised by him "when so required" by his mother, the cestui que trust. The trustee has never conveyed and she has never, so far as we are informed, requested him to do so. As no authority to dispose of the property is conferred upon her by the deed of settlement, her attempted conveyance to the plaintiff Monroe was clearly ineffectual to transfer any estate, either legal or equitable, to either of the plaintiffs. Kemp v. Kemp, Hardy v. Holly, Mayo, v. Farrar,supra.

The cause is entitled "William Monroe, trustee, H. E. Grimball and others against S.D. Trenholm," both in the caption of the summons and complaint, and we have made a fruitless examination of the pleadings to ascertain who were, or were intended to be, the other parties plaintiff. The inference is fairly deducible from the fact that Mrs. E. B. (641) Trenholm is designated in the complaint not as a plaintiff, but as "his (defendant's) cestui que trust mentioned in Exhibit ``B'"; that she, at least has never been made a party at all. As neither of the plaintiffs acquired any interest in the land by the attempted conveyance of Mrs. E. B. Trenholm, in disregard of the mode of alienation pointed out in the instrument under which she held, it is manifest that they are not entitled to recover possession in this action. It is equally clear that the plaintiff Monroe has acquired no right under this pretended or intended conveyance to call upon the defendant to divest himself of the legal title and the trusts coupled with it by his father in the settlement. If S.D. Trenholm wrongfully withholds the possession or profits of the land from the cestui que trust, Mrs. E. B. Trenholm, the courts may discuss or point out her remedy when she alleges and proves that he has so wronged her, but not at the request of a stranger to the instrument, who volunteers to ask redress for her. If by reason of his habits, or for other sufficient cause, the defendant has become incompetent or unfit to execute the trust with which he was clothed by the deed, it is the right of Mrs. E. B. Trenholm, not of one who has no interest in the property, to ask in the way appointed by law for his removal and the substitution of a more suitable person in his place. As she is not before the court complaining of a refusal on the part of the defendant to execute a voluntary conveyance to William Monroe in trust for H. E. Grimball at her request, we are not required, if we are at liberty, to determine whether the deed of settlement restricted her authority to the right to require a sale for reinvestment, or conferred upon her the power to direct and compel the execution by the trustee of a voluntary conveyance to such one of her children as she should select as the object of her bounty.

Upon the admissions in the pleadings the action should have (642) been dismissed and judgment rendered in favor of the defendant for the costs.

REVERSED.

Cited: Broughton v. Lane, 113 N.C. 18; Monroe v. Trenholm, 114 N.C. 590;Kirby v. Boyette, 116 N.C. 167; S. c., 118 N.C. 257; Shannon v.Lamb, 126 N.C. 43; Cameron v. Hicks, 141 N.C. 28, 30.