WiNBORNE, J.
This Court held on the former appeal, 217 N. C., 70, 6 S. E. (2d), 812, that the court below correctly ruled that deed from
W.
Homer Fisher and wife, Oleo M. Fisher, to Sydnor DeButts, Trustee, is void, and conveyed nothing; that the tenancy by the entirety continued to exist between
W.
Homer Fisher and Cleo M. Fisher, his wife; and that, upon, absolute divorce being granted, they became tenants in common, each owning an undivided one-half interest therein in fee simple. To that extent the decision on the former appeal, upon the facts then appearing, constitutes the law of the case, both in the subsequent proceedings in the court below and in this appeal.
Robinson v. McAlhaney,
216 N. C., 674, 6 S. E. (2d), 517, and cases there cited.
Appellant contends, however, that the factual situation is now different, in that the court below finds as a fact that the deed of separation between
W.
Homer Fisher and his wife, Cleo M. Fisher, and the deed of trust from them to Sydnor DeButts, Trustee, together form the separation agreement between "W. Homer Fisher and his said wife. It appears, however, from the record that this finding of fact is made upon oral testimony, and not from the certificate of the officer before whom the deed of trust was acknowledged as required by the provisions of O. S., 2515, and is, therefore, ineffectual to, and does not, alter the decision on former appeal.
Appellant further contends that
~W.
Homer Fisher was, and that plaintiffs and defendant who are his children and heirs at law are estopped by the said deed of trust to said trustee to claim the lands in question. However, the failure to observe the requirements of the statute makes the deed absolutly void.
Wallin v. Rice,
170 N. C., 417, 87 S. E., 239, and other cases cited on former appeal. In the
Wallin case, supra,
the Court held that if the deed is void for noncompliance with the statute, the covenant of warranty is likewise void, and will not work as an estoppel.
As indicated by the findings of fact; W. Homer Fisber did not convey to Sydnor DeButts, as trustee or otherwise, the undivided one-half interest which vested in him as tenant in common with Oleo M. Fisher upon the granting of absolute divorce to them, and that he died seized of it. Therefore, title thereto vested in his children as his heirs at law subject to the dower right of his widow.
Now, then, regarding the remaining undivided one-half interest in said land of which Oleo M. Fisher became vested as tenant in common with W. Homer Fisher upon their divorce being granted, the question arises as to the effect of the subsequent deed of 30 June, 1936, from Oleo M. (Fisher) Hatchell and her second husband, Luther D. Hatchell, to Sydnor DeButts, Trustee, in which they conveyed to the trustee, his successors and assigns, all their right, title and interest in the lands in question.
This deed recites in brief that, “Whereas, W. Homer Fisher and wife, Oleo May Fisher, executed to Sydnor DeButts, as trustee, a certain deed . . . therein conveying certain lands . . . upon the trusts and for the uses and purposes set out in said deed . . . and, whereas, the question has been raised as to the technical form and acknowledgment of said form of deed; and, whereas, the grantors herein claim no interest in said lands and desire to correct said former mistake, if such there be.” The
habendum,
in said deed reads : “To have and to hold said lands and premises ... to him the said party of the second part as trustee upon the trusts and for the uses and purposes set out in said former deed to him, free and discharged from all right, title, claim or interest of parties of the first part.” In the former deed the uses and purposes upon which the land was attempted to be conveyed to the trustee are stated in this manner: “In trust, nevertheless, that the said trustee, or his successors, shall take, hold and manage the said property for the use and benefit of the said W. Homer Fisher, one of the parties of the first part, his heirs, executors or administrators, and the said trustee shall have the absolute discretion and power to sell, mortgage, exchange, convey or dispose of the said property, and reinvest the proceeds of the said sale in such other property as the said trustee may deem advisable, and shall pay the income from the said property, or from the property which may be exchanged for the said property, to the said W. Homer Fisher, or to whomsoever he designates.”
As to passive trusts, the statute, O. S., 1740, merges the legal and equitable titles in the beneficiary and converts the beneficial use into legal ownership. But this is not true as to active trusts.
McKenzie v. Sumner,
114 N. C., 425, 19 S. E., 375;
Perkins v. Brinkley,
133 N. C., 154, 45 S. E., 541;
Cameron v. Hicks,
141 N. C., 21, 53 S. E., 728;
Lummus v. Davidson,
160 N. C., 484, 76 S. E., 474;
Rouse v. Rouse,
167 N. C.,
208, 83 S. E., 305;
Springs v. Hopkins,
171 N. C., 486, 88 S. E., 774;
Lee v. Oates,
171 N. C., 717, 88 S. E., 889;
Cole v. Bank,
186 N. C., 514, 120 S. E., 54;
Patrick v. Beatty,
202 N. C., 454, 163 S. E., 572;
Bank v. Sternberger,
207 N. C., 811, 178 S. E., 595;
Chinnis v. Cobb,
210 N. C., 104, 185 S. E., 638.
“Where the use is executed by the statute the trustee takes no estate or interest, both legal and equitable estates vesting in the
cestui que trust;
but where the use is not executed, the legal title passes to the trustee.” . . . 39 Cyc., 607, quoted in
Lee v. Oates, supra.
In the deed from Oleo M. (Fisher) Hatchell and husband, being presently considered, as the trustee has no discretion as to payment, but is required to pay over the income from the trust estate to W. Homer Fisher, “or to whomsoever he designates,” the trust in that respect is passive,
Fowler v. Webster,
173 N. C., 442, 92 S. E., 157, and if nothing else appeared the statute, C. S., 1740, would execute the use and vest the whole title in W. Homer Fisher. But as to the
corpus
of the estate, the trustee has active and discretionary duties to perform. In that respect the trust is active. Hence, the use is not converted by the statute. Thus, the trustee took the legal title for the purposes of the trust, and W. Homer Fisher the beneficial title. The extent to which each took title is dependent upon the intention of the grantors as ascertained from the language used.
Heyer v. Bulluck,
210 N. C., 321, 186 S. E., 356.
When the deed is so considered, the language used clearly indicates the intention of the grantors to quitclaim to the trustee all 'their right, title and interest in the land, to have and to hold for the use and benefit of W. Homer Fisher upon the trust stated. It is manifest that there is no intention that the title revert to the grantors as in
Land Co. v. Newell,
185 N. C., 410, 117 S. E., 341. But, patently, the intention is to create a personal trust for the use and benefit of W. Homer Fisher. In that event, there being no limitation over, the trust would terminate at his death and the whole title to the Oleo M.
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WiNBORNE, J.
This Court held on the former appeal, 217 N. C., 70, 6 S. E. (2d), 812, that the court below correctly ruled that deed from
W.
Homer Fisher and wife, Oleo M. Fisher, to Sydnor DeButts, Trustee, is void, and conveyed nothing; that the tenancy by the entirety continued to exist between
W.
Homer Fisher and Cleo M. Fisher, his wife; and that, upon, absolute divorce being granted, they became tenants in common, each owning an undivided one-half interest therein in fee simple. To that extent the decision on the former appeal, upon the facts then appearing, constitutes the law of the case, both in the subsequent proceedings in the court below and in this appeal.
Robinson v. McAlhaney,
216 N. C., 674, 6 S. E. (2d), 517, and cases there cited.
Appellant contends, however, that the factual situation is now different, in that the court below finds as a fact that the deed of separation between
W.
Homer Fisher and his wife, Cleo M. Fisher, and the deed of trust from them to Sydnor DeButts, Trustee, together form the separation agreement between "W. Homer Fisher and his said wife. It appears, however, from the record that this finding of fact is made upon oral testimony, and not from the certificate of the officer before whom the deed of trust was acknowledged as required by the provisions of O. S., 2515, and is, therefore, ineffectual to, and does not, alter the decision on former appeal.
Appellant further contends that
~W.
Homer Fisher was, and that plaintiffs and defendant who are his children and heirs at law are estopped by the said deed of trust to said trustee to claim the lands in question. However, the failure to observe the requirements of the statute makes the deed absolutly void.
Wallin v. Rice,
170 N. C., 417, 87 S. E., 239, and other cases cited on former appeal. In the
Wallin case, supra,
the Court held that if the deed is void for noncompliance with the statute, the covenant of warranty is likewise void, and will not work as an estoppel.
As indicated by the findings of fact; W. Homer Fisber did not convey to Sydnor DeButts, as trustee or otherwise, the undivided one-half interest which vested in him as tenant in common with Oleo M. Fisher upon the granting of absolute divorce to them, and that he died seized of it. Therefore, title thereto vested in his children as his heirs at law subject to the dower right of his widow.
Now, then, regarding the remaining undivided one-half interest in said land of which Oleo M. Fisher became vested as tenant in common with W. Homer Fisher upon their divorce being granted, the question arises as to the effect of the subsequent deed of 30 June, 1936, from Oleo M. (Fisher) Hatchell and her second husband, Luther D. Hatchell, to Sydnor DeButts, Trustee, in which they conveyed to the trustee, his successors and assigns, all their right, title and interest in the lands in question.
This deed recites in brief that, “Whereas, W. Homer Fisher and wife, Oleo May Fisher, executed to Sydnor DeButts, as trustee, a certain deed . . . therein conveying certain lands . . . upon the trusts and for the uses and purposes set out in said deed . . . and, whereas, the question has been raised as to the technical form and acknowledgment of said form of deed; and, whereas, the grantors herein claim no interest in said lands and desire to correct said former mistake, if such there be.” The
habendum,
in said deed reads : “To have and to hold said lands and premises ... to him the said party of the second part as trustee upon the trusts and for the uses and purposes set out in said former deed to him, free and discharged from all right, title, claim or interest of parties of the first part.” In the former deed the uses and purposes upon which the land was attempted to be conveyed to the trustee are stated in this manner: “In trust, nevertheless, that the said trustee, or his successors, shall take, hold and manage the said property for the use and benefit of the said W. Homer Fisher, one of the parties of the first part, his heirs, executors or administrators, and the said trustee shall have the absolute discretion and power to sell, mortgage, exchange, convey or dispose of the said property, and reinvest the proceeds of the said sale in such other property as the said trustee may deem advisable, and shall pay the income from the said property, or from the property which may be exchanged for the said property, to the said W. Homer Fisher, or to whomsoever he designates.”
As to passive trusts, the statute, O. S., 1740, merges the legal and equitable titles in the beneficiary and converts the beneficial use into legal ownership. But this is not true as to active trusts.
McKenzie v. Sumner,
114 N. C., 425, 19 S. E., 375;
Perkins v. Brinkley,
133 N. C., 154, 45 S. E., 541;
Cameron v. Hicks,
141 N. C., 21, 53 S. E., 728;
Lummus v. Davidson,
160 N. C., 484, 76 S. E., 474;
Rouse v. Rouse,
167 N. C.,
208, 83 S. E., 305;
Springs v. Hopkins,
171 N. C., 486, 88 S. E., 774;
Lee v. Oates,
171 N. C., 717, 88 S. E., 889;
Cole v. Bank,
186 N. C., 514, 120 S. E., 54;
Patrick v. Beatty,
202 N. C., 454, 163 S. E., 572;
Bank v. Sternberger,
207 N. C., 811, 178 S. E., 595;
Chinnis v. Cobb,
210 N. C., 104, 185 S. E., 638.
“Where the use is executed by the statute the trustee takes no estate or interest, both legal and equitable estates vesting in the
cestui que trust;
but where the use is not executed, the legal title passes to the trustee.” . . . 39 Cyc., 607, quoted in
Lee v. Oates, supra.
In the deed from Oleo M. (Fisher) Hatchell and husband, being presently considered, as the trustee has no discretion as to payment, but is required to pay over the income from the trust estate to W. Homer Fisher, “or to whomsoever he designates,” the trust in that respect is passive,
Fowler v. Webster,
173 N. C., 442, 92 S. E., 157, and if nothing else appeared the statute, C. S., 1740, would execute the use and vest the whole title in W. Homer Fisher. But as to the
corpus
of the estate, the trustee has active and discretionary duties to perform. In that respect the trust is active. Hence, the use is not converted by the statute. Thus, the trustee took the legal title for the purposes of the trust, and W. Homer Fisher the beneficial title. The extent to which each took title is dependent upon the intention of the grantors as ascertained from the language used.
Heyer v. Bulluck,
210 N. C., 321, 186 S. E., 356.
When the deed is so considered, the language used clearly indicates the intention of the grantors to quitclaim to the trustee all 'their right, title and interest in the land, to have and to hold for the use and benefit of W. Homer Fisher upon the trust stated. It is manifest that there is no intention that the title revert to the grantors as in
Land Co. v. Newell,
185 N. C., 410, 117 S. E., 341. But, patently, the intention is to create a personal trust for the use and benefit of W. Homer Fisher. In that event, there being no limitation over, the trust would terminate at his death and the whole title to the Oleo M. Fisher undivided one-half interest would descend to his heirs at law.
Baker v. McAden,
118 N. C., 740, 24 S. E., 531.
What, then, is the effect of the deed of 19 May, 1938, from Sydnor DeButts, Trustee, to W. Homer Fisher and his second wife, defendant Lois Ruth Fisher ? Bearing in mind that at that time W. Homer Fisher already owned in fee the undivided one-half interest which vested in him by reason of the divorce from Oleo M. Fisher, and the beneficial title to the other undivided one-half interest by virtue of the deed from Oleo M. (Fisher) Hatchell and husband to Sydnor DeButts, Trustee, DeButts, Trustee, held only the legal title to the undivided half interest conveyed by that deed, and that only for the purpose and with the powers set forth in the said deed to him. No right is therein given to him to convey the
legal title to
W.
Homer Fisber and bis wife, Lois Rutb Fisber, for tbe better carrying out of tbe trust as is recited in tbe premises as reason for executing tbe deed. Nor did
~W.
Homer Fisber possess tbe right to call upon tbe trustee to do more than to pay to bim or to whomsoever be designated tbe income from tbe trust estate. He was given no right to call for a conveyance of tbe legal title to bim or to anyone else. Furthermore, tbe rights of a purchaser for value and without notice are not here involved.
Hence, by tbe deed from Sydnor HeButts, Trustee,
W.
Homer Fisber and bis wife, Lois Rutb Fisber, acquired no title either as tenants by tbe entirety, as tenants in common, or otherwise, to tbe land in question.
Tbe trust terminated upon tbe death of "W. Homer Fisber, and tbe title to tbe whole of tbe land descended to bis children as bis heirs at law, subject to tbe dower right of bis widow.
Baker v. McAden, supra.
Tbe j’udgment below is
Affirmed.