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150 S.E.2d 62 (1966)

268 N.C. 114

REDEVELOPMENT COMMISSION OF the CITY OF GREENVILLE, Petitioner, v. Amelia S. CAPEHART, Marjorie Capehart St. Cyr and husband, John Doe St. Cyr, County of Pitt, North Carolina, and City of Greenville, North Carolina.

Nos. 116, 117.

Supreme Court of North Carolina.

September 21, 1966.

*63 Kenneth G. Hite, H. Horton Rountree, Greenville, for petitioner appellee.

Sam B. Underwood, Jr., Greenville, for defendants appellants.

PLESS, Justice.

In Abernathy v. South & W. R. Co., 150 N.C. 97, 63 S.E. 180, Connor, J., speaking for the Court, said: "While in other special proceedings when an issue of fact is raised upon the pleadings it is transferred to the civil docket for trial, in condemnation proceedings the questions of law and fact are passed upon by the clerk, to whose *64 rulings exceptions are noted, and no appeal lies until the final report of the commissioners comes in, when upon exceptions filed the entire record is sent to the superior court where all of the exceptions are passed upon and questions may be then presented for the first time."

This excerpt was incorporated in the opinion in Town of Selma v. Nobles, 183 N.C. 322, 111 S.E. 543, where it is said: "As to the procedure in a case of this kind, our decisions are to the effect that, notwithstanding the appearance of issuable matter in the pleadings, it is the duty of the clerk in the first instance to pass upon all disputed questions presented in the record, and go on to the assessment of the damages through commissioners duly appointed, and allowing the parties by exceptions to raise any questions of law or fact issuable or otherwise to be considered on appeal from him in his award of the damages as provided by law."

In her response Mrs. St. Cyr had denied the right of plaintiff to take the property in question and when the Clerk appointed the commissioners to appraise the property on 7 October she took an exception to his order and gave notice of appeal, but did not pursue it. Here again a quotation from Abernathy v. RR, supra, is pertinent: "No appeal lies until the final report of the commissioners comes in when upon exception filed the entire record is sent up to Superior Court where all the exceptions may then be presented."

The Commissioners filed their report awarding defendants $11,000 for the taking of the property on 19 November, 1965. Notice of the award was given to the respondent on 3 December, but she filed no further exceptions at that time or prior to 28 December, 1965, when the Clerk entered his judgment in the matter after notifying the respondent's counsel of his intention to do so.

G.S. ยง 40-19 provides that: "Within twenty days after filing the report * * * any person interested in the said land may file exception to said report, and upon the determination of the same by the court, either party to the proceedings may appeal to the court at term, and thence, after judgment, to the Supreme Court."

The Clerk's judgment was signed some 40 days after the report had been made by the Commissioners to his office, and 25 days after the respondent had had formal notice thereof. In her failure to file exceptions or appeal during these times she waived her right to do so.

Having failed to perfect her appeal within the time, the respondent thereupon sought to present her alleged grievances by filing a petition for writ of recordari, but here again she fails to comply with the rules. To be entitled to recordari the petitioner must show she is not guilty of laches, there is merit in her case, and she must specify the facts from which the court may determine, instead of a general allegation of merit. Application should be made promptly to the next term of court. McIntosh Practice & Procedure, Sec. 1882.

In view of (1) the long delay in filing the petition, and (2) the fact that the jury awarded $11,000 when the respondent had said in her pleadings one time that $10,150 would be sufficient for the land, it is apparent that she has not been diligent and that she lacks merit.

The next term of Superior Court of Pitt County after the judgment was signed by the Clerk was on 24 January, 1966, but the record does not show that application was made at that term and it was not presented until the term of court convening 21 February, 1966.

In view of the foregoing, Judge Parker's denial of the application was correct in Case No. 116, and it is therefore affirmed.

We find only one North Carolina case that deals with the question presented in Case No. 117. This is Miller v. City of *65 Asheville, 112 N.C. 759, 16 S.E. 762, in which it is said: "When (as here) the property is taken under the right of eminent domain, the fund realized is substituted for the realty, and is held subject to like charges and trusts; and, when limited over on a contingent remainder, it will be divided among the parties entitled, upon the happening of the contingency in the same manner as the realty itself would have been if it had remained intact."

However, the question has been determined by a number of other courts, and it is said in 27 Am.Jur.2d 28: "According to the predominate view, where property is condemned and the question is raised as to whether the award should be distributed between a life tenant and remaindermen, the award stands in the place of the realty and must be maintained as a whole, with the life tenant receiving the income and the corpus being reserved for ultimate distribution to the remaindermen."

In 91 A.L.R.2d 965, it is stated: "* * * the courts have generally held that the rights of the life tenant and remainderman in the condemnation proceeds are the same as they were in the realty represented by the proceeds, that is, the life tenant has the right to the use of the proceeds during his life, and the remainderman is entitled to the corpus upon the death of the life tenant."

We accordingly hold that the life tenant, Mrs. Capehart, is entitled to the interest or income from the $11,000 award, and that at her death the respondent, Mrs. St. Cyr, would be entitled to the corpus of the award.

There was error in the ruling below.

In case No. 116


In case No. 117