State Codes and Statutes

Statutes > North-carolina > Chapter_41 > GS_41-11

§41‑11.  Sale, lease or mortgage in case of remainders.

In all cases where there is avested interest in real estate, and a contingent remainder over to persons whoare not in being, or when the contingency has not yet happened which willdetermine who the remaindermen are, there may be a sale, lease or mortgage ofthe property by a special proceeding in the superior court, which proceedingshall be conducted in the manner pointed out in this section. Said proceedingmay be commenced by summons by any person having a vested interest in the land,and all persons in esse who are interested in said land shall be made partiesdefendant and served with summons in the way and manner now provided by law forthe  service of summons in other special proceedings, as provided by Rule 4 ofthe Rules of Civil Procedure, and service of summons upon nonresidents, orpersons whose names and residences are unknown, shall be by publication as nowrequired by law or such service in lieu of publication as now provided by law.In cases where the remainder will or may go to minors, or persons under otherdisabilities, or to persons not in being, or whose names and residences are notknown, or who may in any contingency become interested in said land, butbecause of such contingency cannot be ascertained, the clerk of the superiorcourt shall, after due inquiry of persons who are in no way interested in orconnected with such proceeding, designate and appoint some discreet person asguardian ad litem, to represent such remainderman, upon whom summons shall beserved as provided by law for other guardians ad litem, and it shall be theduty of such guardian ad litem to defend such actions, and when counsel isneeded to represent him, to make this known to the clerk, who shall by an ordergive instructions as to the employment of counsel and the payment of fees.

The court shall, if theinterest of all parties require or would be materially enhanced by it, order asale of such property or any part thereof for reinvestment, either in purchasingor in improving real estate, less expense allowed by the court for theproceeding and sale, and such newly acquired or improved real estate shall beheld upon the same contingencies and in like manner as was the property orderedto be sold. The court may authorize the loaning of such money subject to itsapproval until such time when it can be reinvested in real estate. And afterthe sale of such property in all proceedings hereunder, where there is a lifeestate, in lieu of said interest or investment of proceeds to which the lifetenant would be entitled to, or to the use of, the court may in its discretionorder the value of said life tenant's share during the probable life of suchlife tenant, to be ascertained as now provided by law, and paid out of theproceeds of such sale absolutely, and the remainder of such proceeds bereinvested as herein provided. Any person or persons owning a life estate inlands which are unproductive and from which the income is insufficient to paythe taxes on and reasonable upkeep of said lands shall be entitled to maintainan action, without the joinder of any of the remaindermen or reversioners asparties plaintiff, for the sale of said property for the purpose of obtainingfunds for improving other nonproductive and unimproved real estate so as tomake the same profit‑bearing, all to be done under order of the court, orreinvestment of the funds under the provisions of this section, but in everysuch action when the rights of minors or other persons not sui juris are involved,a competent and disinterested attorney shall be appointed by the court to fileanswer and represent their interests. The provisions of the preceding sentence,being remedial, shall apply to cases where any title in such lands shall havebeen acquired before, as well as after, its passage – March 7, 1927.

The clerk of the superiorcourt is authorized to make all orders for the sale, lease or mortgage ofproperty under this section, and for the reinvestment or securing and handlingof the proceeds of such sales, but no sale under this section shall be held ormortgage given until the same has been approved by the resident judge of thedistrict, or the judge holding the courts of the district at the time saidorder of sale is made. The approval by the resident judge of the district maybe made by him either during a session of court or at chambers. All orders ofapproval under said statute by judges resident in the district heretofore madeeither during a session of court or at chambers are hereby ratified andvalidated.

The court may authorize thetemporary reinvestment, pending final investment in real estate, of fundsderived from such sale in any direct obligation of the United States of Americaor any indirect obligation guaranteed both as to principal and interest orbonds of the State of North Carolina issued since the year 1972; but in theevent of such reinvestment, the commissioners, trustees or other officersappointed by the court to hold such funds shall hold the bonds in theirpossession and shall pay to the life tenant and owner of the vested interest inthe lands sold only the interest accruing on the bonds, and the principal ofthe bonds shall be held subject to final reinvestment and to such expense onlyas is provided in this section. Temporary reinvestments, as aforesaid, in anydirect obligation of the United States of America or any indirect obligationguaranteed both as to principal and interest or State bonds heretofore madewith the approval of the court of all or a part of the funds derived from suchsales are ratified and declared valid.

The court shall, if theinterest of the parties require it and would be materially enhanced by it,order such property mortgaged for such term and on such condition as to thecourt seems proper and to the best interest of the interested parties. Theproceeds derived from the mortgage shall be used for the purpose of addingimprovements to the property or to remove existing liens on the property as thecourt may direct, but for no other purpose. The mortgagees shall not be heldresponsible for determining the validity of the liens, debts and expenses wherethe court directs such liens, debts and expenses to be paid. In all cases ofmortgages under this section the court shall authorize and direct the guardianrepresenting the interest of minors and the guardian ad litem representing theinterest of those persons unknown or not in being to join in the mortgage forthe purpose of conveying the interest of such person or persons. In all casesof mortgages under this section the owner of the vested interest or his or herlegal representative shall within six months from the date of the mortgage filewith the court an itemized statement showing how the money derived from thesaid mortgage has been expended, and shall exhibit to the court receipts forsaid money. Said report shall be audited in the same manner as provided for theauditing of guardian's accounts. The owner of the vested interest or his or herlegal representative shall collect the rents and income from the propertymortgaged and apply the proceeds first to taxes and discharge of interest onthe mortgage and the annual curtailment as provided thereby, or if said personuses or occupies said premises he or she shall pay the said taxes, interest andcurtailments and said party shall enter into a bond to be approved by the courtfor the faithful performance of the duties hereby imposed, and such personshall annually file with the court a report and receipts showing that taxes,interest and the curtailment as provided by the mortgage have been paid.

The mortgagee shall not beheld responsible for the application of the funds secured or derived from themortgage. The word "mortgage" whenever used herein shall be construedto include deeds in trust. (1903, c. 99; 1905, c. 548; Rev., s. 1590; 1907, cc.956, 980; 1919, c. 17; C.S., s. 1744; Ex. Sess. 1921, c. 88; 1923, c. 69; 1925,c. 281; 1927, cc. 124, 186; 1933, c. 123; 1935, c. 299; 1941, c. 328; 1943, cc.198, 729; 1947, c. 377; 1951, c. 96; 1967, c. 954, s. 3; 1971, c. 528, s. 39.)

State Codes and Statutes

Statutes > North-carolina > Chapter_41 > GS_41-11

§41‑11.  Sale, lease or mortgage in case of remainders.

In all cases where there is avested interest in real estate, and a contingent remainder over to persons whoare not in being, or when the contingency has not yet happened which willdetermine who the remaindermen are, there may be a sale, lease or mortgage ofthe property by a special proceeding in the superior court, which proceedingshall be conducted in the manner pointed out in this section. Said proceedingmay be commenced by summons by any person having a vested interest in the land,and all persons in esse who are interested in said land shall be made partiesdefendant and served with summons in the way and manner now provided by law forthe  service of summons in other special proceedings, as provided by Rule 4 ofthe Rules of Civil Procedure, and service of summons upon nonresidents, orpersons whose names and residences are unknown, shall be by publication as nowrequired by law or such service in lieu of publication as now provided by law.In cases where the remainder will or may go to minors, or persons under otherdisabilities, or to persons not in being, or whose names and residences are notknown, or who may in any contingency become interested in said land, butbecause of such contingency cannot be ascertained, the clerk of the superiorcourt shall, after due inquiry of persons who are in no way interested in orconnected with such proceeding, designate and appoint some discreet person asguardian ad litem, to represent such remainderman, upon whom summons shall beserved as provided by law for other guardians ad litem, and it shall be theduty of such guardian ad litem to defend such actions, and when counsel isneeded to represent him, to make this known to the clerk, who shall by an ordergive instructions as to the employment of counsel and the payment of fees.

The court shall, if theinterest of all parties require or would be materially enhanced by it, order asale of such property or any part thereof for reinvestment, either in purchasingor in improving real estate, less expense allowed by the court for theproceeding and sale, and such newly acquired or improved real estate shall beheld upon the same contingencies and in like manner as was the property orderedto be sold. The court may authorize the loaning of such money subject to itsapproval until such time when it can be reinvested in real estate. And afterthe sale of such property in all proceedings hereunder, where there is a lifeestate, in lieu of said interest or investment of proceeds to which the lifetenant would be entitled to, or to the use of, the court may in its discretionorder the value of said life tenant's share during the probable life of suchlife tenant, to be ascertained as now provided by law, and paid out of theproceeds of such sale absolutely, and the remainder of such proceeds bereinvested as herein provided. Any person or persons owning a life estate inlands which are unproductive and from which the income is insufficient to paythe taxes on and reasonable upkeep of said lands shall be entitled to maintainan action, without the joinder of any of the remaindermen or reversioners asparties plaintiff, for the sale of said property for the purpose of obtainingfunds for improving other nonproductive and unimproved real estate so as tomake the same profit‑bearing, all to be done under order of the court, orreinvestment of the funds under the provisions of this section, but in everysuch action when the rights of minors or other persons not sui juris are involved,a competent and disinterested attorney shall be appointed by the court to fileanswer and represent their interests. The provisions of the preceding sentence,being remedial, shall apply to cases where any title in such lands shall havebeen acquired before, as well as after, its passage – March 7, 1927.

The clerk of the superiorcourt is authorized to make all orders for the sale, lease or mortgage ofproperty under this section, and for the reinvestment or securing and handlingof the proceeds of such sales, but no sale under this section shall be held ormortgage given until the same has been approved by the resident judge of thedistrict, or the judge holding the courts of the district at the time saidorder of sale is made. The approval by the resident judge of the district maybe made by him either during a session of court or at chambers. All orders ofapproval under said statute by judges resident in the district heretofore madeeither during a session of court or at chambers are hereby ratified andvalidated.

The court may authorize thetemporary reinvestment, pending final investment in real estate, of fundsderived from such sale in any direct obligation of the United States of Americaor any indirect obligation guaranteed both as to principal and interest orbonds of the State of North Carolina issued since the year 1972; but in theevent of such reinvestment, the commissioners, trustees or other officersappointed by the court to hold such funds shall hold the bonds in theirpossession and shall pay to the life tenant and owner of the vested interest inthe lands sold only the interest accruing on the bonds, and the principal ofthe bonds shall be held subject to final reinvestment and to such expense onlyas is provided in this section. Temporary reinvestments, as aforesaid, in anydirect obligation of the United States of America or any indirect obligationguaranteed both as to principal and interest or State bonds heretofore madewith the approval of the court of all or a part of the funds derived from suchsales are ratified and declared valid.

The court shall, if theinterest of the parties require it and would be materially enhanced by it,order such property mortgaged for such term and on such condition as to thecourt seems proper and to the best interest of the interested parties. Theproceeds derived from the mortgage shall be used for the purpose of addingimprovements to the property or to remove existing liens on the property as thecourt may direct, but for no other purpose. The mortgagees shall not be heldresponsible for determining the validity of the liens, debts and expenses wherethe court directs such liens, debts and expenses to be paid. In all cases ofmortgages under this section the court shall authorize and direct the guardianrepresenting the interest of minors and the guardian ad litem representing theinterest of those persons unknown or not in being to join in the mortgage forthe purpose of conveying the interest of such person or persons. In all casesof mortgages under this section the owner of the vested interest or his or herlegal representative shall within six months from the date of the mortgage filewith the court an itemized statement showing how the money derived from thesaid mortgage has been expended, and shall exhibit to the court receipts forsaid money. Said report shall be audited in the same manner as provided for theauditing of guardian's accounts. The owner of the vested interest or his or herlegal representative shall collect the rents and income from the propertymortgaged and apply the proceeds first to taxes and discharge of interest onthe mortgage and the annual curtailment as provided thereby, or if said personuses or occupies said premises he or she shall pay the said taxes, interest andcurtailments and said party shall enter into a bond to be approved by the courtfor the faithful performance of the duties hereby imposed, and such personshall annually file with the court a report and receipts showing that taxes,interest and the curtailment as provided by the mortgage have been paid.

The mortgagee shall not beheld responsible for the application of the funds secured or derived from themortgage. The word "mortgage" whenever used herein shall be construedto include deeds in trust. (1903, c. 99; 1905, c. 548; Rev., s. 1590; 1907, cc.956, 980; 1919, c. 17; C.S., s. 1744; Ex. Sess. 1921, c. 88; 1923, c. 69; 1925,c. 281; 1927, cc. 124, 186; 1933, c. 123; 1935, c. 299; 1941, c. 328; 1943, cc.198, 729; 1947, c. 377; 1951, c. 96; 1967, c. 954, s. 3; 1971, c. 528, s. 39.)


State Codes and Statutes

State Codes and Statutes

Statutes > North-carolina > Chapter_41 > GS_41-11

§41‑11.  Sale, lease or mortgage in case of remainders.

In all cases where there is avested interest in real estate, and a contingent remainder over to persons whoare not in being, or when the contingency has not yet happened which willdetermine who the remaindermen are, there may be a sale, lease or mortgage ofthe property by a special proceeding in the superior court, which proceedingshall be conducted in the manner pointed out in this section. Said proceedingmay be commenced by summons by any person having a vested interest in the land,and all persons in esse who are interested in said land shall be made partiesdefendant and served with summons in the way and manner now provided by law forthe  service of summons in other special proceedings, as provided by Rule 4 ofthe Rules of Civil Procedure, and service of summons upon nonresidents, orpersons whose names and residences are unknown, shall be by publication as nowrequired by law or such service in lieu of publication as now provided by law.In cases where the remainder will or may go to minors, or persons under otherdisabilities, or to persons not in being, or whose names and residences are notknown, or who may in any contingency become interested in said land, butbecause of such contingency cannot be ascertained, the clerk of the superiorcourt shall, after due inquiry of persons who are in no way interested in orconnected with such proceeding, designate and appoint some discreet person asguardian ad litem, to represent such remainderman, upon whom summons shall beserved as provided by law for other guardians ad litem, and it shall be theduty of such guardian ad litem to defend such actions, and when counsel isneeded to represent him, to make this known to the clerk, who shall by an ordergive instructions as to the employment of counsel and the payment of fees.

The court shall, if theinterest of all parties require or would be materially enhanced by it, order asale of such property or any part thereof for reinvestment, either in purchasingor in improving real estate, less expense allowed by the court for theproceeding and sale, and such newly acquired or improved real estate shall beheld upon the same contingencies and in like manner as was the property orderedto be sold. The court may authorize the loaning of such money subject to itsapproval until such time when it can be reinvested in real estate. And afterthe sale of such property in all proceedings hereunder, where there is a lifeestate, in lieu of said interest or investment of proceeds to which the lifetenant would be entitled to, or to the use of, the court may in its discretionorder the value of said life tenant's share during the probable life of suchlife tenant, to be ascertained as now provided by law, and paid out of theproceeds of such sale absolutely, and the remainder of such proceeds bereinvested as herein provided. Any person or persons owning a life estate inlands which are unproductive and from which the income is insufficient to paythe taxes on and reasonable upkeep of said lands shall be entitled to maintainan action, without the joinder of any of the remaindermen or reversioners asparties plaintiff, for the sale of said property for the purpose of obtainingfunds for improving other nonproductive and unimproved real estate so as tomake the same profit‑bearing, all to be done under order of the court, orreinvestment of the funds under the provisions of this section, but in everysuch action when the rights of minors or other persons not sui juris are involved,a competent and disinterested attorney shall be appointed by the court to fileanswer and represent their interests. The provisions of the preceding sentence,being remedial, shall apply to cases where any title in such lands shall havebeen acquired before, as well as after, its passage – March 7, 1927.

The clerk of the superiorcourt is authorized to make all orders for the sale, lease or mortgage ofproperty under this section, and for the reinvestment or securing and handlingof the proceeds of such sales, but no sale under this section shall be held ormortgage given until the same has been approved by the resident judge of thedistrict, or the judge holding the courts of the district at the time saidorder of sale is made. The approval by the resident judge of the district maybe made by him either during a session of court or at chambers. All orders ofapproval under said statute by judges resident in the district heretofore madeeither during a session of court or at chambers are hereby ratified andvalidated.

The court may authorize thetemporary reinvestment, pending final investment in real estate, of fundsderived from such sale in any direct obligation of the United States of Americaor any indirect obligation guaranteed both as to principal and interest orbonds of the State of North Carolina issued since the year 1972; but in theevent of such reinvestment, the commissioners, trustees or other officersappointed by the court to hold such funds shall hold the bonds in theirpossession and shall pay to the life tenant and owner of the vested interest inthe lands sold only the interest accruing on the bonds, and the principal ofthe bonds shall be held subject to final reinvestment and to such expense onlyas is provided in this section. Temporary reinvestments, as aforesaid, in anydirect obligation of the United States of America or any indirect obligationguaranteed both as to principal and interest or State bonds heretofore madewith the approval of the court of all or a part of the funds derived from suchsales are ratified and declared valid.

The court shall, if theinterest of the parties require it and would be materially enhanced by it,order such property mortgaged for such term and on such condition as to thecourt seems proper and to the best interest of the interested parties. Theproceeds derived from the mortgage shall be used for the purpose of addingimprovements to the property or to remove existing liens on the property as thecourt may direct, but for no other purpose. The mortgagees shall not be heldresponsible for determining the validity of the liens, debts and expenses wherethe court directs such liens, debts and expenses to be paid. In all cases ofmortgages under this section the court shall authorize and direct the guardianrepresenting the interest of minors and the guardian ad litem representing theinterest of those persons unknown or not in being to join in the mortgage forthe purpose of conveying the interest of such person or persons. In all casesof mortgages under this section the owner of the vested interest or his or herlegal representative shall within six months from the date of the mortgage filewith the court an itemized statement showing how the money derived from thesaid mortgage has been expended, and shall exhibit to the court receipts forsaid money. Said report shall be audited in the same manner as provided for theauditing of guardian's accounts. The owner of the vested interest or his or herlegal representative shall collect the rents and income from the propertymortgaged and apply the proceeds first to taxes and discharge of interest onthe mortgage and the annual curtailment as provided thereby, or if said personuses or occupies said premises he or she shall pay the said taxes, interest andcurtailments and said party shall enter into a bond to be approved by the courtfor the faithful performance of the duties hereby imposed, and such personshall annually file with the court a report and receipts showing that taxes,interest and the curtailment as provided by the mortgage have been paid.

The mortgagee shall not beheld responsible for the application of the funds secured or derived from themortgage. The word "mortgage" whenever used herein shall be construedto include deeds in trust. (1903, c. 99; 1905, c. 548; Rev., s. 1590; 1907, cc.956, 980; 1919, c. 17; C.S., s. 1744; Ex. Sess. 1921, c. 88; 1923, c. 69; 1925,c. 281; 1927, cc. 124, 186; 1933, c. 123; 1935, c. 299; 1941, c. 328; 1943, cc.198, 729; 1947, c. 377; 1951, c. 96; 1967, c. 954, s. 3; 1971, c. 528, s. 39.)

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