Summary
In Gordon v. Lowther, 75 N.C. 193, the facts were similar, except that the limitation over and after the life estate, was to such children as the life tenant might have who attained the age of twenty-one years, and to the plaintiff if there were none such left; and the life tenant, as in our case, had passed the period of child-bearing, and it was decided that no recovery could be had for damages from waste already committed, but the plaintiff was entitled to protection against future waste and destruction by the exercise of the restraining power of the court.
Summary of this case from Coward v. MeyersOpinion
June Term, 1876.
Waste — Damages — Injunction.
Owners of executory bequests and other contingent interests cannot recover damages for waste already committed. They are entitled, however, to have their interest protected from threatened waste or destruction by injunctive relief.
INJUNCTION, tried before Eure, J., at Fall Term, 1875, of GATES.
The plaintiff applied to his Honor for an injunction to (194) strain the commission of waste, and demanded in his complaint judgment for damages for waste heretofore committed on the tract of land therein described.
Plaintiff claims that he has such an estate of inheritance in the lands upon which the alleged waste has been committed so as to enable him to maintain this action, which estate is derived under the will of his grandfather, John C. Gordon. The portions whereof that are pertinent to this case are fully set out in the opinion of Justice SETTLE.
It is agreed as a fact in the case that Martha S. Lowther, the feme defendant and life tenant, is about fifty-two years of age, has been married twelve years, and has never given birth to a child.
To the plaintiff's complaint the defendant demurred, assigning as cause of demurrer:
1. That the plaintiff had not the legal capacity to sue; in that he did not have the immediate estate of inheritance in the lands, and therefore could not maintain this action.
2. For defect of parties, in that the person in whom the immediate estate of inheritance was vested should be party plaintiff.
His Honor overruled the demurrer, and the defendants appealed.
Gilliam Pruden for appellants.
Moore Gatling, contra.
The testator "lends" to his daughter Martha (now Mrs. Lowther) certain lands described in his statement, and adds: "Should my said daughter have no child or children to live to be twenty-one years old, my will and desire is that my grandson John Gordon, son of George B. Gordon, shall have it after her death; if she should (195) have child or children to arrive at the above age, my desire is that they shall have it after her death."
This makes the defendant Martha Lowther a tenant for life, with a contingent remainder in fee to such child or children as she may have, who live to the age of twenty-one years, with an executory devise over to the plaintiff in the event that no child of Martha Lowther lives to the age of twenty-one years.
The allegations of the complaint are that the defendants, at various times from 1863 to 1875, have sold timber trees from the land and have torn down buildings, and have allowed the farm to go to ruin, thereby committing voluntary and allowing permissive waste, and that the defendants are now, at the time of commencing this action, still committing waste by selling timber trees from the land, and that the injury to the estate of inheritance is equal to the value of the life estate.
And, therefore, the plaintiff brings this action:
First, to restrain waste; second, to recover damages for the waste already committed. The defendants demur.
While owners of executory bequests and other contingent interests cannot recover damages for waste already committed, they are entitled to have their interests protected from threatened waste or destruction by injunctive relief.
This is clear both upon principle and authority. Braswell v. Morehead, 45 N.C. 26; Douthit v. Bodenhammer, 57 N.C. 444; Watson v. Watson, 56 N.C. 400.
Inasmuch as Martha Lowther is now fifty-two years of age, has been married twelve years and has never had a child, and admits by the demurrer the waste charged in the complaint, this would seem to be a very proper case for such relief.
PER CURIAM. Affirmed.
Cited: Cowand v. Meyers, 99 N.C. 201; Jones v. Britton, 102 N.C. 170, 195, 205; Farabow v. Green, 108 N.C. 343; Peterson v. Ferrell, 127 N.C. 170; Coffin v. Harris, 141 N.C. 713.
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