The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1900-03-09
IMPORTANT LAND SUIT DECIDED
An Opinion by Judge Purnell 1nvolv'
ing 1900 Acres of Land.

luG I,CUU 1ClcS VI A1lus
Judge Purnel yesterday decided the
case of L. A. Daniel ct al VS.. j. p. Felt.
The plaintiffs, children of A. II. Davis
and Charlotte e. Davis, brought suit in
the Superior court of Halifax county u
recover possession of about 1900 acres
of land and damages for it's detention
The case was removed to the United
States Circuit court. The facts in it are
as follows:
In 1869, John G. Davis, and wife conveyed to
Charlotte L. Davis, the land referred TO by
deed in short and simple form IN when dhf ere
the sole zeneft of the said Charlotte r. DAVIS
and children of the said A. H. Davis and herself
The said Charlotte is to have power to sell whole
or any part of said land at private or pubic
sale and on such terms as she may think reason
able and to invest the proceeds IN any manner
which she may deem expedient."
On March 4th, 1870, A. H. Davis and Charlotte
+. Davis, executed a deed with warranty TO
defendant and others, in which the land Is not
described by metes and bounds, but among
other mesne conveyances the deed from John I.
Davis is referred to presumably for identified
ton of the land but it is not so stated. A. H.
Davis died in 1892, and Charlotte +. Davis died
in 1885, both intestate, leaving them surviving
plaintiffs, their children and only heirs at law;
In the deed from A. NJ and Z. T.. Davis on
March 4th 1870, there is no referesce to any pow
| er being executed by Charlotte j.. Davis, the
and warranties Plaintiffs contend that by the
execution of said deed the interest OF Char
lotte E. Davis only was conveyed ana she dl9
not exercise the power given her by the deed
from John c. Davis and wife to dispose OF ana
convey away plaintiffs interests.
Defendant filed demurrer and contended
'That the interest of the plaintiffs in said land
was Invested by said conveyance and that SAID
conveyance was due execution of the power OF
sale conferred in said deed upon Charlotte f.
Davis, the plaintiffs are not entitled TO recoV
er any interest in said land and plaintiffs have
title to said land and premises
After stating the above facts in the
case at issue, Judge Purnell has this
to say in course of his opinion upon them:
Under the deed from John c. Davis and wife,
certainly some interest or estate was vested in
Charlotte Il. Davis. 1t is not material whether
she had limited or base fee. with title as
tenant by the curtesy to her husband, life es-
tate with remainder to the children OF any
other limited estate She had an interest The
deed conveyed the title to her and then limits
the title by these words In trust nevertheless
and for the sole benefit of the said Charlotte T..
Davis and of the children of the said A. H.
Davis and herself.' Then follows the power to
sell. Here there is an interest or estate coupled
with power What would have become OF the
title in case of her death before she conveyed
the land does not enter into the question
at issue: She did convey. The question Is,
what did she convey?
the instrument, conveyance or will the lnten-
ton will govern, and the reason of the rule
is stated by all the authorities to be because
the deed, will or other writing would be multi
| ty except for the exercise of the power and has
! nothing to operate on except the subject matter
of the power. This rule applies to naked pow
| er. This intention may be gathered from the in
| strument, the subject matter and surrounding
| circumstances. Blake VS.. Hawkins, 9S L. 5. 315;
| Warner Insurance Co, 100 L. 5. 357-366 In
discussing this rule in Lee Simpson, 134 L.
| S. at page $50, and in Johnson vs. Knight,
| III n. c., 1913, Mr.. Justice Blatchford in the
| former and Chief Justice Faircloth in the latter
tically the same conclusion. Both cases We're
the construction of a will, and the rule seems
TO be well settled by numerous other authorities.
The meaning of the expression in the rule "a
| power coupled with an interest" is discussed
| in Hunt VS.. Rousamier s Wheat. 203, and de-
fined to be a power which accompanies, or is
| connected with, an interest The same rule OF
construction is recognized in North Carolina as a
/ well settled rule of property which will be fol-
lowed in the courts of the United States. In
EXum VS.. Baker, rs n. c., 547 the rule is thus
stated by the Chief Justice delivering the opin-
ion of the court after citing Kent, 334-5 (as
above) and Towles vs. Fisher, II n. G. 437:
| when the donee of power to sell has an IN
terest of his own in the property affected by
the power and makes conveyance of the prop
erty without reference to the power, the con-
struotion is that he intends to convey only
what he might rightfully convey with the power.
| When, however, the donee has no interest in the
! subject of the conveyance, but only naked
power, then the intent apparent upon the face
of the instrument to sell, would be deemed a
sufficient reference to the power to make the
| instrument an execution of it, the words
of the instrument could not be otherwise salts
fed. -
Applying the rule of construction either q
| general principle a well settled rule OF
property in the State wherein the land is sit
uate, TO the case at bar, the conclusion must
be that Charlotte +. Davis and her husband by
the deed of March 4th, 1870, conveyed only the
interest of Charlotte f. Davis and did not ex-
ercise the power to sell the interest of the
| children of A. II. Davis and herself.
The case is another illustration of the penny
wise and pound foolish practice of having other
than thoroughly competent lawyers to examine
titles and draw conveyances, especially when
dealing with trustees married women and Others
occupying fduciary relations. The repairs OF
errors often cost many times the saving in the
| first instance.
What relief a Court of Equity might afford it
| is not proper now to discuss but it being ac-
| ton at law the court will not look beyond
| the strict rule of law.
An order will therefore be entered overruling
| the demurrer, and unless other pleadings shall
be filed within sixty days from the entry of
such order, judgment will be entered in favor OF
the plaintiffs and against the defendant, pro
confesso, in accordance with the prayers of the
complaint.
| 1t is ordered