Gillespie v. . Allison

BURWELL, J., dissents. There being no contention as to the interests of the parties in the lands sought to be partitioned or sold for partition, it appears that the petitioner is, by virtue of the wills of Henry Owens and Jane Owens, tenant of said lands, "so long as she remains (545) the widow of W. A. Owens"; that she has sold her interest in one of the tracts to one of the other petitioners, and that the other parties are tenants in remainder of said lands according to their respective rights as set out in the petition and answer. Before the Act of 1887, chapter 214, contenants in remainder or reversion had no right to enforce a compulsory partition of land in which they had such estate. Woodv. Sugg, 91 N.C. 93; Aydlett v. Pendleton, 111 N.C. 28. The provisions of the above-named act are, substantially:

Sec. 1. That actual partition may be made of part of the land sought to be partitioned, and a sale and partition of the remainder, or a part only of any land held by tenants in common may be partitioned, and the remainder held in common.

Sec. 2. That the existence of a life estate in any land shall not be a bar to a sale for partition of the remainder, or reversion thereof, and for the purposes of partition the tenants in common shall be deemed seized and possessed as if no life estate existed. But this shall not interfere with the possession of the life tenant during the existence of his estate.

Sec. 3. That in all proceedings for partition of land whereon there is a life estate, the life tenant may join in the petition or proceeding, and on a "note" (this word is an evident mistake and should be "sale") the interest on the value of the share of the life tenant shall be received and paid to such life tenant annually, or, in lieu of such annual interest, the value of such share during the probable life of such life tenant shall be ascertained and paid out of the proceeds to such life tenant absolutely.

The life tenant and her assignee, with others who are tenants in remainder, ask for a sale for partition, and as the life tenant has sold her interest in one of the tracts, they ask that the value of an annuity of 6 per cent of the proceeds of the sale of that tract be paid over to him, and that the other tract be sold for partition and the (546) proceeds divided according to the interest, etc. The other remaindermen are defendants. They contend:

1. That the estate of the petitioner, Alice B. Owens, is not a life estate in the contemplation of the Act of 1887, because the said estate may be terminated by her marriage at any time before her natural life expires.

Estates of this nature are called estates durante viduitate, and such are defined to be "estates for life, determinable on her ceasing to be such widow"; during their continuance, freeholds. Coke Litt., 42a; Cruise Dig., 115; 4 Kent, 26; 2 Blackstone, 121.

Such estates being so long known to the law as life estates are within the meaning of the words used in the Act of 1887, as such words are to be taken in their ordinary and legal acceptation.

2. It is contended that the remainders are contingent, and as such the petitioners are not entitled to have partition of the same. But they cannot be contingent remainders either according to the definition of Blackstone or the arrangement of Fearne; for one criterion of all such remainders is that the particulars estate may chance to be determined and the remainder never take effect. Now the particular estate is thatdurante viduitate; it may last for the life of the tenant, and it may be determined by her marriage, but in either event the remainder immediately takes effect, for it is invariably fixed to remain to determinate persons after the particular estate is spent. See 4 Kent, 202 et seq., where the definitions both of Blackstone and of Fearne are given of vested and contingent remainders. The remaindermen in our case have a present fixed right of future enjoyment. Their estates are vested. But if they are contingent it does not follow that there could not be partition, unless it be that there is no one before the court to represent all of the contingent interests. Aydlett v. Pendleton, supra; (547) Overman v. Tate, 114 N.C. 571.

3. It is further objected that it is impracticable in this case to give to the life tenant the choice offered by the Act of 1887, either to have the interest on the value of the life tenant's share, or in lieu thereof the value of such share during the probable life of such life tenant, because the life estate may determine by the marriage of the tenant, and therefore there can be no rule for computing the present value of such estate.

The third section of the statute seems to have been framed to meet such an emergency, and we are of the opinion that the statute will be satisfied by the payment of the interest upon the proceeds of sale of the land sold to the life tenant or her assignee until the determination of the particular estate.

And the second section provides for the actual partition of the other tract, not to interfere with the possession of the life tenant or her assignee during the existence of her estate.

4. The defendants claim that they have vested rights which cannot be impaired or affected by the Act of 1887, passed after such rights have accrued; in other words, that they were remaindermen before 1887, when, by the law of this State, that they were not permitted to have partition during the continuance of the particular estate. What vested rights did they have ? They were tenants of an estate in remainder, and upon the death of marriage of the life tenant, and not until then, they would be entitled to partition or sale for partition. This new law permits them to anticipate the time for partition and have the same made subject to the interest of the life tenant, which is not to be disturbed, or when the life tenant join in the petition, as in this case, to have a sale for partition, saying her interest.

It seems to us that instead of depriving the remaindermen of a right, the effect of this statute is in furtherance of the public policy which, as was said in Overman v. Tate, supra, discourages the tying up of property and the prevention of its alienation, and gives effect to the general principle that every one has the right to enjoy his own (548) in severalty. No vested right of property has been disturbed, and, in our view, this is a remedial statute enlarging rights instead of impairing them.

"Statutes are remedial and retrospective, in the absence of direction to the contrary, when they create new remedies for existing rights, remove penalties or forfeitures, extenuate or mitigate offenses, supply evidence, make that evidence which was not so before, abolish imprisonment for debt, enlarge exemption laws, enlarge the rights of persons under disability, and the like, unless in doing this we violate some contract obligation or divest some vested right." Larkins v. Saffarans, 15 Fed., 147. These principles as to vested rights and retrospective laws are fully discussed in the great and leading case of Calder v. Bull, 3 Dallas, 386. See also many cases collected in Myers Vested Rights, ch. 1; Hinton v. Hinton,61 N.C. 410; Tabor v. Ward, 83 N.C. 294. We hope we shall not be understood as making any reference to ex post facto laws, which cannot be made to have a retrospective effect in criminal cases.

This statute differs greatly from that under consideration in Greer v.Asheville, 114 N.C. 678, where it was sought to give a retrospective effect to an act amending the charter of Asheville, so as to continue in office during good behavior a city marshal who had been elected under the law, as it then was, for a term. Such an act, as was justly said, was to act prospectively only, unless the legislative intent to the contrary was made manifest in express terms.

The right to actual partition only exists where such partition can be made without injury to the parties interested, but the right of sale, in case such actual partition cannot be had, has long existed in this State (The Code, sec. 1904), and has been extended by the Act (549) of 1887 to remaindermen and reversioners.

In our opinion, the judgment appealed from protects the rights of all the parties, and in it there is

No error.