The bill states, "that, by deed bearing date 10 December, 1840, J. S. Smith, the father of the plaintiff, did convey and assign to her, the plaintiff, in remainder, certain lands lying on Price's Creek in Orange County, which will more fully appear, reference being had to the said deed, registered in book D. page 396, in the Register's office of Orange; that the land *Page 334 designated in said deed as the Price's Creek tract, was once owned by Francis Jones, the grandfather of the plaintiff; and that, by deed bearing date 19 March, 1819, Francis Jones conveyed to J. S. Smith, his son-in-law, the said tract; that by the said deed, bearing date 19 January, 1825, the said Francis Jones conveyed to J. S. Smith other lands, called the Park's Neck lands, for the sum of $7,000, and also, upon an (434) express agreement between the said parties, that the said Smith should reconvey to the Francis Jones the lands on Price's Creek; that, as she is informed, and believes, a deed was accordingly executed by her father to the said Francis Jones for the said lands, bearing even date with that made by Francis Jones to him for the Park's Neck lands, to wit, 19 January, 1825; that this deed, as executed, was delivered to the said Jones, and was seen at the time of delivery or afterwards, by sundry persons, some of whom are advanced in years, others have left the State, and recently departed this life; that the said deed remained in the possession of Francis Jones many years, but, as your oratrix is informed and believes, was taken from his possession by Ruffin Jones, his only son, and was by him destroyed; and that the said Ruffin Jones died many years since.
"Further complaining your oratrix shows, that her said grandfather Jones avowed his intention, after his reception of said deed, of giving said lands on Price's Creek to your oratrix at his death; and she further shows, that in accordance with that purpose, which was frequently declared, he made and published his last will in writing in 1840, in and by which, among other things, he did devise to your oratrix the said lands, directing his executor in what manner his said purpose should be carried into effect; that some months after the publication of the said will, and in the life time of the said Francis Jones, her father, not only in obedience to the direction and devise in said will contained, but also in compliance with a promise long before made by him to the said Jones, did convey by deed, lands on Price's Creek, in remainder to your oratrix, reserving life-estates therein, as well to himself as to his wife, the mother of your oratrix: all of which will appear by reference to the said deed, registered in book D, as heretofore stated; that your oratrix accepted the said deed at the time of its execution, and because, as she is advised, entitled (435) absolutely to a vested remainder in said lands; that in 1844, her grandfather Jones departed this life, leaving his said will unaltered and unrevoked and that said will was admitted to probate at May Sessions of Orange Court of Pleas *Page 335 and Quarter Session 1844, and her father, J. S. Smith, the executor therein named, was qualified as such (a certified copy of which she hath ready to produce when required by the Court), and took upon himself the burden of executing the same; that on 21 November, 1845, she purchased of her said father his life-estate in the Price's Creek lands, at and for the price of $1,000, and he executed and delivered to her a deed for the said lands, bearing date on that day, which will more fully appear by reference to the same as registered in book D, page 398, in the Register's office of Orange. Your oratrix shows that she has become the owner in remainder, of the said land on Price's Creek, and also of the life-estate of her father in the same, and is in possession of said land under and by virtue of the said several conveyances, subject, nevertheless, to the life-estate of her mother in the event of her surviving the father of your oratrix; and your oratrix had well hoped that she would have enjoyed her said estates quietly, and without interruption or doubt as to her titles to the same."
The bill then states, that the defendant, Turner, "although her deed had been registered as aforesaid, and thus he had notice of her said title,"yet had an execution against Turner and J. S. Smith, levied on said lands as the property of J.S. Smith, and at a sale by the sheriff he, Turner, became the purchaser, and had received or would receive the sheriff's deed therefor.
The bill then proceeds, "that she, being thus in possession of said lands, has no means of having her title to said lands established, and that, as the witnesses to the existence of the deed from Dr. J. S. Smith to Francis Jones, reconveying the lands in question, are some of them advanced in years, (436) and others have left the State, and that one of them in particular hath recently died, and that said deed is lost or destroyed, she hath good reason to fear that, hereafter, in the event of the death of the said witnesses, it would be impossible to establish her title to the said lands; that from the course taken by the said Turner, she doth believe that, perhaps at some distant day, he means to institute proceedings in regard to these lands, which may be injurious to her, if the testimony of the said witnesses can not now be perpetuated, the more especially as she has no means of trying the question of title by any act of hers, and there is no reasonable probability that there will be any immediate action by others to try the said question; that she is informed that the said Turner hath charged that your oratrix hath no good title to the said lands; that no deed was ever made by the said Dr. J. S. Smith to *Page 336 Francis Jones, reconveying the said lands, and that the said lands therefore were not the property of the said Jones or conveyed by his will to your oratrix." The prayer is, "that your oratrix may be at liberty to examine her said witness, touching said deed, lost or destroyed as aforesaid, and touching her title to the said lands in every particular, so that their testimony may be perpetuated and preserved"; and for process of subpoena commanding Turner to appear and answer, "and to stand to, abide by, and perform such decree as to your Honor may seem meet."
The defendant answered, and admits that he purchased the same land under an execution against J. S. Smith, which the plaintiff claims, and that he meant to contest her title, and states that he had already commenced an action of ejectment against her. The answer takes several objections to the bill for certain imputed defects, in not being supported by any affidavit, and in having a prayer for relief, and in various other particulars.
At the first term, the court of equity "on the motion (437) of the plaintiff, ordered that the complainant have leave to examine witnesses and take testimony as prayed in the bill without prejudice, and that the Clerk and master issue commissions accordingly." Upon a affidavit of the plaintiff, that two persons, M. S. and C. Y. were, the one about to leave the State, and the other confined by sickness, the Court further ordered, that the depositions of those two persons might be taken on three days notice. From those orders the defendant appealed. The primary object of the bill appears to be, and we are told at the bar that the sole object of it is, to perpetuate the testimony of witnesses. It is a kind of bill that is not of frequent occurrence, and, indeed, one that the court of equity does not, for very good reasons, like to entertain except in cases of plain necessity. Angel v. Angel, 1 Sim. Stu., 83. It so seldom occurs in practice, that the profession is probably not familiar with it. Yet the jurisdiction is well settled, and the cases in which such bills will lie, and the proper form of the bill and of the orders on it, are clearly enough stated in the books. The frame of the bill before us is, however, thoroughly defective. In the first place every bill should describe a subject of controversy so as to identify it. This is *Page 337 absolutely necessary in order to enable the court to decree on the rights of the parties to the thing, or, in this proceeding, to direct the interrogatories of specify the matter to which the witnesses are to be examined. Now, all we learn of the subject of this dispute is, that is "certain lands lying on Price's Creek in Orange County," without any further description. It is true, that the bill says that those lands were conveyed by J. S. Smith to the plaintiff in remainder, by a deed executed 10 December, 1841, and registered in Orange in a certain book. But that is not a description of the land upon (438) this record, but only a reference to another paper as evidence of the plaintiff's title; and it would be impossible, without bringing into the cause that deed — a thing not in the contemplation of a mere bill in perpetuam rei memoriam — to make an order as to the subject touching which the witnesses should be examined. Look upon the order that was made, and see how indefinite, and necessarily indefinite, it is; being, that the plaintiff "may examine witnesses and take testimony as prayer for in the bill," and the prayer is for the examination of witnesses at large, "touching her title to said lands in every particular," as well as touching a deed, alleged to be lost. We suppose, however, that it was mainly the object to establish the execution existence and validity of a deed for certain lands from J. S. Smith to F. Jones; about which the allegation is, that it was seen "by sundry persons,"and that Turner denies that such a deed was ever made. But it is laid down, that, if the object of the bill is to perpetuate the testimony of witnesses to a deed respecting land, the deed must be properly described and the names of the witnesses, who are to prove it, be set forth; and also the facts to which they are to give evidence be specially stated. Mason v. Goodburn, Finch, 391;Knight v. Knight, 4 Madd., 8. In each of those particulars the bill is defective. This kind of bill, too, like every other, must show the interest of the plaintiff in the subject. Mitf. Pl., 51. And in stating the plaintiff's title, the bill should, though succinctly, set if forth plainly and with convenient certainty as to the material facts — so that on the bill itself some certain interest in the plaintiff shall appear; which, indeed, is sufficient, however minute the interest may be. In applying this rule to a bill to perpetuate evidence in regard to a title to a tract of land, which stated only that on a certain day a executed a deed to the plaintiff, whereby the land was conveyed to the plaintiff, and that thereupon the plaintiff (439) executed to A a lease of the premises during his life, it was held that it was fatally defective, both as to the *Page 338 matter and the manner of treating the plaintiff's title, because it did not set out the contents of the deed nor state what species of estate or quantity of interest was granted. Jerome v. Jerome, 5 Conn. 352. Now, the bill here omits everything of that sort as respects the deed from J. S. Smith to F. Jones — not stating whether it conveyed a present or future interest, or a fee, or life-estate, or term for years. We can not tell whether anything could now be claimed under that deed, if it ever existed. The same observation extends to the manner of setting forth all the other title papers. The bill begins by stating that J. S. Smith, by a deed dated 10 December, 1841, conveyed to the plaintiff the premises "in remainder"; but after what particular estate, or what the interest in remainder was, whether in fee, for life, or otherwise, contingent, or absolute, we are not told. In subsequently stating the will of the grandfather, the same vagueness is displayed, and even more. It sets out, that the land was devised thereby to the plaintiff; and, if it had stopped there, perhaps it might be taken to be a devise in fee, under our statute. But it goes on to state, that the testator therein "directed his executor in what manner his said purpose should be carried into effect, without setting out that part of the will haec verba, or as much as mentioning the manner in which the purpose was to be effected: which, we suppose, must mean the manner in which the estate in the land should be passed to or vested in the plaintiff. Something of that sort was indispensably necessary in the bill to make it intelligible; for the executor. virtute officii, would have nothing to do with the conveyance of land to a person, to whom the testator devised it, and could only have a power, touching the land, specially conferred by the will; and that does not appear here.
But a more important objection to the bill, arises from (440) the manner in which the plaintiff states her title, from which it follows, that the question, touching which she prays to perpetuate testimony, or, rather, the only question which is specifically stated, is one that can never arise in a court of law, and therefore the court will not perpetuate evidence to it. This is one of that kind of bills, on which the court of equity does not decide on rights, but assists a court of law in doing so, by preserving evidence. Mitf. Pl., 148. The court will not do a useless thing. As if a bill be to perpetuate evidence against a tenant in tail, who may immediately bar the estate, the court will make no order, inasmuch as it would be fruitless.Dursby v. Fitzhardinge, 6 Ves., 260. So, if this plaintiff can never set up the title, stated in her bill, as a legal title, on which she can defend her possession, it is in *Page 339 vain to perpetuate the evidence. For, if her redress upon that title must be in a court of equity at last, then her proper course is to file a bill for relief at once, and not a bill of this kind. The court of equity will not entertain a bill in perpetuam reimemoriam, touching a subject of its own jurisdiction, because the party can always, though in possession, file a bill for relief and the court can, in its discretion, make the proper orders upon an emergency for speeding the taking the testimony of old, infirm or removing witnesses; which, indeed is, in this State, specially provided for by statute. Rev. St., Ch. 32, sec. 4. Now, it is very plain that the plaintiff can not assert the title, which she sets up under Francis Jones, at law, and that it is material to her to rely on that title. She states, indeed, that J. S. Smith became seized of the land under a conveyance from Jones, and that by two deeds from Smith she has the legal title for the life of her father, upon a purchase for $1,000, and for the remainder after the deaths of her father and mother. But this latter conveyance would not be good as against the father's creditors, because it was upon no consideration, moving from the plaintiff, unless she can connect herself with the title Jones derived by the deed, (441) alleged to have been made to him by J. S. Smith and to have been lost. That she does through the devise by Jones to herself — supposing that to be sufficiently stated in the Bill. But, as appearing, in the bill, it will not support the deed from her father to the plaintiff, because that deed could not have been made to the plaintiff as the devisee of Jones, since it was executed before the death of Jones. If it be said, the bill states, that the conveyance was made in compliance with a promise of Smith to Jones, the answer is, that, whether the interest of Jones be regarded as legal or equitable in its nature, it could not be passed by even an express act any parol, much less by implication in the manner charged. Therefore the plaintiff is obliged to resort to her grandfather's will to sustain her title. But after she shall have done so, she still can not show a good title in a court of law, because the deed to Jones was not registered, as far as appears, and therefore could not be given in evidence at law. It is very singular, upon the statements in the bill, that, upon the loss of that deed, a new one had not been executed from J. S. Smith to Jones. However Jones had a clear right to call for another deed in this Court and it would have been decreed to him. Tolar v.Tolar, 16 N.C. 456; Plummer v. Baskerville, 36 N.C. 252. In like manner the plaintiff as his devisee, can call for a conveyance from her father, or from the present defendant, as having *Page 340 succeeded to the legal title, that rested in the father, in consequence of the loss of his deed to the grandfather before registration. If, in fact, J. S. Smith made the deed to Jones Bona fide, and for the consideration alleged in the bill, and Jones did devise the land to the plaintiff in possession, or in remainder in fee, after the death of her father and mother (as we suppose it was intended to be charged), her title to relief here will be (442) clear; and so far as her right is derived from the grandfather, that is the only mode in which she can assert it. It is plain, therefore, that in no point of view, and to no extent, is this bill sufficient to entitle the plaintiff to the assistance of the Court, if it had been demurred to. That would have been the most correct course; for no discovery was sought from the defendant, and there was no occasion for an answer. But the mere circumstance, that the defendant put in a needless answer, not called for, but not admitting any part of the plaintiff's title, nor any fact on which she grounds her claim on the Court for aid, can not dispense with a statement of some case in the bill, apparently proper for the interposition of the Court, or cure a bill so radically deficient as the present both in form and substance. And, finally, the Court is of opinion, that the orders appealed from were erroneous and ought to be reversed, and of course if any commissions issued thereon, they ought to be called in and canceled, so as in effect to suppress the depositions, if any have been taken. Then appellant is entitled to his cost in this Court.
PER CURIAM. DECREED ACCORDINGLY.
Cited: Phifer v. Barnhart, 88 N.C. 339.
(443)