LOVETT et al.
v.
STONE.
No. 683.
Supreme Court of North Carolina.
January 15, 1954.*482 Varser, McIntyre & Henry, Lumberton, for the defendant Dewey Stone, appellant.
Robert Weinstein, Frank D. Hackett, and McLean & Stacy, Lumberton, for the plaintiff, Billy Stone, appellee.
ERVIN, Justice.
The defendant makes these assertions by his assignments of error:
1. The trial judge committed error in holding that John Wishart Campbell was properly appointed next friend of the plaintiff Billy Stone.
2. The trial judge committed error in refusing to dismiss the claim of the plaintiff Billy Stone upon a compulsory nonsuit.
3. The trial judge committed error in finding, concluding, and adjudging that the plaintiff Billy Stone is the owner in fee simple of a one-fourth undivided interest in the land in controversy.
4. The trial judge committed error in admitting evidence of the rental value of the land in controversy during its occupancy by the defendant subsequent to the death of Hector Alexander Stone.
5. The trial judge committed error in finding, concluding, and adjudging that the plaintiff Billy Stone is entitled to recover of the defendant one-fourth of the value of the rents and profits of the land in controversy during its occupancy by the defendant subsequent to the death of Hector Alexander Stone.
6. The trial judge committed error in finding, concluding, and adjudging that the defendant is not entitled to recover anything of the plaintiff Billy Stone on account of improvements made by him upon the land in controversy.
We will consider these assignments of error in the order of their statement. Before taking up this task, we pause to note *483 that the findings of fact of the trial judge harmonize with the evidence at the trial, and are binding on the parties on this appeal under this rule: Where the parties consent to trial by the court without a jury, the findings of the court are as conclusive as the verdict of a jury if they are supported by evidence. Poole v. Gentry, 229 N.C. 266, 49 S.E.2d 464.
Proceedings for the appointment of a next friend for an infant plaintiff are regulated by this rule of court: "In all cases where it is proposed that infants shall sue by their next friend, the court shall appoint such next friend, upon the written application of a reputable, disinterested person closely connected with such infant; but if such person will not apply, then, upon the like application of some reputable citizen; and the court shall make such appointment only after due inquiry as to the fitness of the person to be appointed." Rule 16, Rules of Practice in the Superior Courts.
The answer of the defendant challenged the validity of the order appointing John Wishart Campbell next friend of the plaintiff Billy Stone solely upon the ground that it was made by the court upon the written application of Campbell, a non-relative, rather than upon the written application of some "person closely connected with such infant."
Since the next friend of an infant plaintiff is an officer of the court subject to judicial supervision, Tate v. Mott, 96 N.C. 19, 2 S.E. 176, and since an infant plaintiff who sues by a next friend is as much bound by the judgment of the court as an adult, Settle v. Settle, 141 N.C. 553, 54 S.E. 445, it may be argued with much reason that a defendant has no legal standing entitling him to question the court's selection of a next friend for an infant plaintiff. Carroll v. Montgomery, 128 N.C. 278, 38 S.E. 874.
Be this as it may, the trial judge did not err in rejecting the challenge to the appointment in the case at bar. His ruling finds complete support in the established procedural rule that the court possesses the overriding discretionary power to appoint any person whom it considers suitable, whether related or not, to act as next friend of an infant plaintiff. McIntosh: North Carolina Practice and Procedure in Civil Cases, Section 253. Besides, the present record warrants the conclusion that the court paid strict heed to the rule of court in appointing a next friend in the instant case. Under the law of evidence, it is presumed unless the contrary appears that judicial acts and duties have been duly and regularly performed. Henderson County v. Johnson, 230 N.C. 723, 55 S.E.2d 502; Smith v. Smith, 226 N.C. 506, 39 S.E.2d 391; Freeman v. Morrison, 214 N.C. 240, 199 S.E. 12; McKellar v. McKay, 156 N.C. 283, 72 S.E. 375; Harris v. Brown, 123 N.C. 419, 31 S.E. 877; Pearle v. Folsom, 2 N.C. 413. As the contrary does not appear in this case, it must be assumed that the court made the appointment of the next friend upon the written application of Campbell because no person closely connected with the plaintiff Billy Stone would apply. In passing from this phase of the appeal, we indulge the observation that this question may now be considered to be moot. The plaintiff Billy Stone has attained his legal majority since the trial in the superior court, and has ratified the proceedings had in his behalf there by continuing the prosecution of the cause in his own right. Hicks v. Beam, 112 N.C. 642, 17 S.E. 490.
The assignments of error in the second and third categories present the same problems and will be considered together.
These problems admit of ready solution if proper heed is paid to the significant circumstances that the testator Alexander Stone owned all of the H. J. Stone tract except the 20 acres, that the devisee Hector Alexander Stone owned a two-thirds undivided interest in the 20 acres, and that the devisee Dewey Stone owned the remaining one-third undivided interest in the 20 acres.
When the will of the testator Alexander Stone is read in the light of these significant circumstances, it is manifest that this case calls into play the doctrine of election. *484 This doctrine has been thus phrased by a text writer: "Election is the obligation imposed upon a party to choose between two inconsistent or alternative rights or claims in cases where there is a clear intention of the person from whom he derives one that he should not enjoy both, the principle being that one shall not take any beneficial interest under a will, and at the same time set up any right or claim of his own, even if legal and well founded, which would defeat or in any way prevent the full effect and operation of every part of the will." 69 C.J., Wills, section 2330. This statement of the doctrine of election finds full sanction in our decisions. Rouse v. Rouse, 237 N.C. 492, 75 S.E.2d 300; Wachovia Bank & Trust Co. v. Burrus, 230 N.C. 592, 55 S.E.2d 183; Lamb v. Lamb, 226 N.C. 662, 40 S.E.2d 29; Benton v. Alexander, 224 N.C. 800, 32 S.E.2d 584, 156 A.L.R. 814; Commercial Nat. Bank of Charlotte v. Misenheimer, 211 N.C. 519, 191 S.E. 14, 110 A.L.R. 1310; Peel v. Corey, 196 N.C. 79, 144 S.E. 559; Craven v. Caviness, 193 N.C. 311, 136 S.E. 705; McGehee v. McGehee, 189 N.C. 558, 127 S.E. 684; Royal v. Moore, 187 N.C. 379, 121 S.E. 666; Brown v. Brown, 180 N.C. 433, 104 S.E. 889; Elmore v. Byrd, 180 N.C. 120, 104 S.E. 162; Tripp v. Nobles, 136 N.C. 99, 48 S.E. 675, 67 L.R.A. 449; Syme v. Badger, 92 N.C. 706; Isler v. Isler, 88 N.C. 581; Sigmon v. Hawn, 87 N.C. 450; Weeks v. Weeks, 77 N.C. 421; Flippin v. Banner, 55 N.C. 450; McQueen v. McQueen, 55 N.C. 16, 62 Am.D. 205; Robertson v. Stephens, 36 N.C. 247; Melchor v. Burger, 21 N.C. 634; Wilson v. Arny, 21 N.C. 376; Field v. Eaton, 16 N.C. 283.
The testator Alexander Stone clearly intended his will to operate so as to vest all of the H. J. Stone tract in Hector Alexander Stone for life with remainder in equal shares in the children of Hector Alexander Stone in fee simple. Items 5 and 6 were designed to effect this intention. The testator did these two things by Item 5: (1) He actually gave all of the H. J. Stone tract except the 20 acres to Hector Alexander Stone for life with remainder in equal shares to the children of Hector Alexander Stone in fee simple; and (2) he professed to make the same disposition of the 20 acres, which were owned by Hector Alexander Stone and the defendant Dewey Stone in these proportions: Hector Alexander Stone, a two-thirds undivided interest; and Dewey Stone, a one-third undivided interest. By Item 6, the testator devised a life estate in a part of his English Rice farm to Dewey Stone upon the express condition that Dewey Stone should convey his one-third undivided interest in the 20 acres to Hector Alexander Stone to the end that it might be enjoyed by Hector Alexander Stone for life and his children in remainder in accordance with the provisions of Item 5.
Hector Alexander Stone and Dewey Stone know the contents of the will. Dewey Stone elected in express terms to take under the will. He manifested his election by accepting and using the part of the English Rice farm devised to him for life, and by deeding his undivided interest in the 20 acres to Hector Alexander Stone "in full compliance with the terms and stipulations of the last will and testament of Alexander Stone." Hector Alexander Stone could not set up his right to the fee simple ownership of the 20 acres without defeating the provision of Item 5 specifying that his children should take the remainder in the 20 acres in equal shares and in fee simple. Hector Alexander Stone was, therefore, compelled by the will to choose whether he would claim fee simple ownership of the 20 acres, or renounce the remainder in the 20 acres and take in lieu thereof that which the testator gave him, namely, a life estate in all of the H. J. Stone tract except the 20 acres. He elected to take under the will, and manifested his election by accepting, occupying, and using for a number of years the part of the H. J. Stone tract actually devised to him for life. Craven v. Caviness, supra; Hoggard v. Jordan, 140 N.C. 610, 53 S.E. 220, 4 L.R.A.,N.S., 1065; Brown v. Ward, 103 N.C. 173, 9 S.E. 300; 57 Am.Jur., Wills, Section 1538; 69 C.J., Wills, Sections 2396, 2398. Inasmuch as he elected to take under the will, Hector Alexander *485 Stone and those claiming under him with notice were bound by the testamentary provision, which limited his interest in all of the H. J. Stone tract to a life estate, and gave the remainder in fee in all of that tract to his children in equal shares. Brown v. Ward, supra; 69 C.J., Wills, Section 2429. This being true, Hector Alexander Stone had a life estate in the H. J. Stone tract subsequent to his election to take under the will.
A grantor cannot convey to his grantee an estate of greater dignity than the one he has. Although Hector Alexander Stone professed to convey the H. J. Stone tract to Dewey Stone in fee simple, his deed of October 5, 1940, transferred nothing to Dewey Stone except his life estate. Eason v. Spence, 232 N.C. 579, 61 S.E.2d 717. Since a person occupying land under a deed effective only as to the life interest does not hold adversely to the remaindermen prior to the death of the life tenant, the possession of the H. J. Stone tract by the defendant Dewey Stone did not become adverse to the four plaintiffs until the death of Hector Alexander Stone, which occurred on January 20, 1945. Sprinkle v. City of Reidsville, 235 N.C. 140, 69 S.E.2d 179; Eason v. Spence, supra. The plaintiff Billy Stone was under the disability of infancy at that time, and his disability was not removed until after the commencement of this action. As a consequence, the adverse possession of the H. J. Stone tract by the defendant Dewey Stone does not operate as a bar against the plaintiff Billy Stone, who still owns the one-fourth undivided interest given him by Item 5. G.S. § 1-38; McIntosh: North Carolina Practice and Procedure in Civil Cases, Sections 107, 108.
It necessarily follows that the assignments of error in the second and third categories are untenable.
The plaintiff Billy Stone has been entitled to one-fourth of the rents and profits of the H. J. Stone tract ever since January 20, 1945, when Hector Alexander Stone, the life tenant, died. The defendant Dewey Stone converted this share of the rents and profits to his own use, and thereby rendered himself liable to the plaintiff Billy Stone in the character of a disseisor for the part of the share accruing before the ripening of his title to the interests in the tract claimed by the other three plaintiffs, and in the character of a tenant in common for the part of the share accruing after that event. Northcot v. Casper, 41 N.C. 303; Camp v. Homesley, 33 N.C. 211; Holdfast v. Shepard, 31 N.C. 222; 28 C.J.S., Ejectment, Section 131; 62 C.J., Tenancy in Common, Section 65. As the plaintiff Billy Stone was under the disability of infancy at the time of the accrual of his claim against the defendant Dewey Stone for his share of the rents and profits, and did not reach the age of twenty-one years until after the commencement of this action, the trial judge did not err in finding, concluding, and adjudging that the plaintiff Billy Stone was entitled to recover of the defendant Dewey Stone the value of his share of the rents and profits accruing upon the H. J. Stone tract subsequent to January 20, 1945. McIntosh: North Carolina Practice and Procedure in Civil Cases, Sections 107, 108. Moreover, the testimony of the witnesses for the plaintiffs as to the rental value of the land in controversy during this period was rightly received. Perry v. Jackson, 88 N.C. 103. The testimony was limited to the H. J. Stone tract which is described in somewhat specific terms in the second paragraph of the complaint. The defendant admitted in express terms in the third paragraph of his answer that he was "in the * * * possession of the lands described in the second paragraph" of the complaint.
The trial judge found, concluded, and adjudged with correctness that the defendant Dewey Stone was not entitled to any offset or recovery against the plaintiff Billy Stone on account of the improvements made by him on the H. J. Stone tract. This is true for the very simple reason that the defendant Dewey Stone did not make the improvements under the belief that his color of title to the interest of the plaintiff Billy Stone was good. G.S. § 1-340; *486 Rogers v. Timberlake, 223 N.C. 59, 25 S.E.2d 167; Pritchard v. Williams, 181 N.C. 46, 106 S.E. 144. The reverse is true. The defendant Dewey Stone was familiar with the provisions of Items 5 and 6 of the will of his grandfather, Alexander Stone, and the actions taken by him and his brother, Hector Alexander Stone, to carry these testamentary provisions into effect. He knew that the deed of October 5, 1940, passed nothing to him except the life estate which Hector Alexander Stone elected to take under the will of Alexander Stone, and that in consequence the color of title afforded by it to him in respect to the interest of his infant nephew, the plaintiff Billy Stone, was not good.
For the reasons given, the provisions of the judgment challenged by this appeal are
Affirmed.