J. R. BARNES and wife, Sadie M. Barnes,
v.
John J. DORTCH, the Guardian ad litem of the Possible Unknown and Unborn Children of Chester H. Prince, and the Unknown and Unborn Heirs at Law of E. C. Prince.
No. 326.
Supreme Court of North Carolina.
January 11, 1957.*874 James N. Smith, Goldsboro, for appellant.
J. Faison Thomson & Son, Goldsboro, for appellees.
DEVIN, Justice.
The petitioners are seeking the sanction of the court for the sale for reinvestment of land in which there are contingent interests in accord with the provisions of the statute, G.S. § 41-11. To achieve this end, on March 12, 1956, they instituted a special proceeding before the clerk. Ch. 96, Session Laws 1951.
This proceeding relates to land known as lot No. 6, which had been allotted to Chester Prince in the partition of the lands devised by E. C. Prince. It appears that the partition was made in 1913 in a special proceeding in which only the life tenants were parties. The partition decree therefore would not have bound the remaindermen. But the petitioners rely upon the evidence of separate and long continued possession of the shares of land allotted in the partition, and the ratification and acceptance of the allotments by all persons having any interest therein from 1913 to the present time. Petitioners also call attention to the record and judgment in the Crawford-Norwood proceeding in 1949, relating to lot No. 1 in this partition, wherein all the heirs of E. C. Prince in esse and in posse were parties, as sufficient to establish the validity and binding effect of the partition of 1913 by estoppel. They contend that the adjudication of the validity of this partition in the Crawford-Norwood case, in which the same persons as those involved in this proceeding were parties and concerning the same subject matter, would constitute res judicata in accord with the principle stated in Current v. Webb, 220 N.C. 425, 17 S.E.2d 614; Craver v. Spaugh, 227 N.C. 129, 41 S.E.2d 82; Worthington v. Wooten, 242 N.C. 88, 86 S.E.2d 767. This is conceded by appellant. The petitioners also call attention to the provisions of the curative statute, G.S. § 46-14.
But we think there was a defect of parties in this proceeding which renders it ineffective for the purpose contemplated.
The petition for authority to sell the land under G.S. § 41-11 was filed only by J. R. Barnes and his wife Sadie Barnes. There were no other parties. On their motion, a guardian ad litem was appointed to represent *875 possible unborn children of Chester Prince and unknown and unborn heirs of E. C. Prince. The heirs of E. C. Prince living at that time (March, 1956) were not made parties. The petitioners proceeded on the theory that by their deed of 1945 they owned the interests of all the living heirs of E. C. Prince at that time, and that all the heirs of E. C. Prince and their descendants are estopped by this deed to claim any interest in lot No. 6.
But the statute under which this proceeding was instituted requires that summons be served on all persons then in being who may have any interest in the land. The proceeding must be brought by a person having a vested interest in the land and those who on the happening of the contingency would presently have an estate in the property at the time the proceeding is commenced, made parties and served with summons. Dawson v. Wood, 177 N.C. 158, 98 S.E. 459.
Under the will of E. C. Prince the land was devised to his five brothers and sister and a nephew for their lives, and then to their children. Chester Prince has no children. Upon his death without issue the land would revert to the heirs of E. C. Prince living at that time. Who will ultimately take could not be determined in 1945. The children of deceased brothers and sister of E. C. Prince, upon the death of Chester Prince without issue, would take as heirs of E. C. Prince, by descent from him and not from the devisees. Burden v. Lipsitz, 166 N.C. 523, 82 S.E. 863; Whitfield v. Garris, 134 N.C. 24, 45 S.E. 904; Elmore v. Austin, 232 N.C. 13(21), 59 S.E.2d 205. For instance, should one of David Prince's children, who in 1945 conveyed his interest in lot No. 6 to the petitioners, predecease Chester Prince and Chester Prince should die without issue, the heir of such child would acquire an interest in lot No. 6 as heir of E. C. Prince and not as heir of his immediate ancestor and hence would not be bound by the deed of such ancestor. Daly v. Pate, 210 N.C. 222, 186 S.E. 348.
Upon the happening of the contingency of Chester Prince's dying without issue, the heirs of the grantors in the deed of 1945 would take directly from the testator as his heirs at law, and the contingent event by which the interest in the land would be determined would be referred not to the death of the testator but to that of Chester Prince. Burden v. Lipsitz, supra. The ultimate takers could not be ascertained until the preceding estate terminated.
We do not think the execution of the deed of 1945 by the grantors named was sufficient to authorize the prosecution of this proceeding on the ex parte petition of the grantees therein without having summons served on all persons now in esse who might have an interest in the land, as required by the statute, G.S. § 41-11.
The remedial purpose of this statute may be served where there are contingent remainders over to persons not in being, or the contingency has not happened which will determine who the ultimate remaindermen are, but to achieve the desired result the provisions of the statute must be observed.
We have re-examined the cases cited and relied on by the petitioners, but find nothing that militates against the views here expressed. In Buffaloe v. Blalock, 232 N.C. 105, 59 S.E.2d 625, the well considered opinion of Denny, J., was based upon testamentary language and attendant facts which differentiate that case from the one at bar. The result reached in Beam v. Gilkey, 225 N.C. 520, 35 S.E.2d 641, was based upon the facts of that case and is not controlling on the facts here made to appear.
The judgment of the Superior Court is
Reversed.