
100 S.E.2d 305 (1957)
247 N.C. 1
Ada BROWN, Edith Stallings, Lillian Laughinghouse, Kate Salley, et al.,
v.
Thurman COWPER and wife, Sarah L. Cowper, Roscoe B. G. Cowper, and wife, et al.
No. 23.
Supreme Court of North Carolina.
October 30, 1957.
*310 Clarence W. Griffin, Williamston, for plaintiffs, appellees.
Peel & Peel, Williamston, for defendants, appellants.
PARKER, Justice.
At the Fall Term 1956 there was before us the case of Peel v. Moore, 244 N.C. 512, 94 S.E.2d 491, which was a controversy without action to determine the sufficiency of a deed to convey title, submitted to the Court under G.S. § 1-250. The plaintiff was a first cousin of Alton Stallings of the blood of his father, and the defendant was a first cousin of Alton Stallings of the blood of his mother. The question sought to be presented for decision in that case is the same question presented for decision in the instant case. We set the judgment aside, and remanded the case for further proceedings, because all the interested persons were not parties. In the instant case where all the interested persons are parties, the facts in some important respects are different from the facts in the former case.
The record shows that the respondents filed an answer, appealed from the judgment, and filed a brief. May Tyler is a respondent, and a first cousin of Alton Stallings of the blood of his father. It would seem that there is a mistake in including her among the appealing respondents.
W. Herbert Stallings and Alton Stallings acquired a one-fifth undivided interest in the Ball Gray Farm as devisees under the Will of their grandfather Clayton Moore, Sr. At the time of the death of the devisor, Clayton Moore, Sr., their mother Emma V. Moore Stallings, who was a daughter of Clayton Moore, Sr., was living *311 undivided interest in the Ball Gray Farm as an heir, had he died intestate. Therefore, W. Herbert Stallings and Alton Stallings at the death of their grandfather were not his heirs or one of his heirs, within the meaning of G.S. § 29-1, Rule 4, and necessarily took the one-fifth undivided interest in the Ball Gray Farm as purchasers in its general sense. W. Herbert Stallings and Alton Stallings took this one-fifth undivided interest by devise, and could not have claimed as heirs of their grandfather Clayton Moore, Sr., had the latter died intestate. It follows that the one-tenth undivided interest in the Ball Gray Farm devised to Alton Stallings by his grandfather must be treated as a new acquisition by him, and such a new acquisition in the event of his death intestate would descend to his first cousins, and the issue of his first cousins, on his father's side as well as to those on the side of his mother. G.S. § 29-1 Rules 4 and 5; Peel v. Corey, 196 N.C. 79, 144 S.E. 559; Osborne v. Widenhouse, 56 N.C. 238; Burgwyn v. Devereux, 23 N.C. 583.
W. Herbert Stallings took a one-tenth undivided interest in the Ball Gray Farm as a purchaser in its general sense by the will of his grandfather. He took a onefifth undivided interest in the same farm, and a one-half undivided interest in six small tracts of land, as one of the heirs of his mother, within the meaning of G.S. § 29-1 Rule 4. He placed a deed of trust upon his three-tenths undivided interest in this farm, and upon his one-half undivided interest in the six small tracts of land, and upon a large amount of his other property, to secure his note for $12,000 for money borrowed from the Bank of Martin County. Having defaulted in the payment of his note the deed of trust was foreclosed, the Bank of Martin County at the foreclosure sale became the last and highest bidder, and A. R. Dunning, Trustee in the deed of trust conveyed by deed all the property covered by the deed of trust to the Bank of Martin County, its successors and assigns.
Alton Stallings took a one-fifth undivided interest in the Ball Gray Farm, and a onehalf undivided interest in six small tracts of land, as one of the heirs of his mother within the meaning of G.S. § 29-1, Rule 4. He became insane in 1916, and remained insane until his death. On 24 April 1916 he was duly adjudicated incompetent from want of understanding to manage his affairs, and J. G. Godard was duly appointed his guardian by the Clerk of the Superior Court of Martin County. Pursuant to a decree duly entered in a special proceeding for the purpose on 20 May 1916 by the Clerk of the Superior Court of Martin County, and confirmed by the Resident Judge of the district on 22 May 1916, Alton Stallings' guardian sold and conveyed to the Bank of Martin County his ward's onehalf undivided interest in the six small tracts of land transmitted to his ward by descent from his mother in exchange for the Bank of Martin County selling and conveying to his ward its three-tenths undivided interest in the Ball Gray Farm. The guardian was authorized by G.S. § 33-31 to make such a private sale and the terms of the statute were carefully complied with.
The general rule is that, where the real estate of a lunatic is sold under a statute, or by order of court, the proceeds of sale remain realty for the purpose of devolution on his death intestate while still a lunatic. Annotation, 90 A.L.R. at page 909 et seq., where the cases are assembled; Annotation, Ann.Cas.1915A, at page 158 et seq.; 18 C.J.S. Conversion § 40, p. 75; 19 Am.Jur., Equitable Conversion, Sec. 23; Tiffany on Real Property, 3rd Ed., Sec. 306; Story's Equity Jurisprudence, 14th Ed., Sec. 1101; Pomeroy's Equity Jurisprudence, 5th Ed., Sec. 1167. See Black v. Justice, 86 N.C. 504, marginal page 512; Bryson v. Turnbull, 194 Va. 528, 74 S.E.2d 180; McCoy v. Ferguson, 249 Ky. 334, 60 S.W.2d 931, 90 A.L.R. 891. The equitable doctrine is that upon the involuntary sale by a guardian, under a *312 judicial decree, of the land of an insane person, incapable by reason of his insanity of intelligent assent and of dealing with his real estate, the proceeds of sale should be impressed with the character of the land sold, and should pass as such at his death if the disability of insanity has not been removed. The object of the rule is to prevent, as far as possible, any alteration by the guardian of a lunatic of the respective rights of the heirs of such lunatic in his real property should he die still a lunatic. See 89 Am.St.Rep., note pages 313-314.
G.S. § 33-32, codified under Ch. 33, Guardian and Ward, is captioned "Fund from sale has character of estate sold and subject to same trusts," and its relevant part reads: "* * * in all sales by guardians whereby real is substituted by personal, or personal by real property, the beneficial interest in the property acquired * * *, shall descend and be distributed, as by law the property sold might and would have been had it not been sold, until it be reconverted from the character thus impressed upon it by some act of the owner and restored to its character proper."
This statute does not in explicit words refer to the case where real property is substituted by real property. However, considering the general rule as to the sale of an insane person's real property under a court order, and the purpose and intent of G.S. § 33-32, we conclude that the threetenths undivided interest in the Ball Gray Farm conveyed to Alton Stallings by the Bank of Martin County in exchange for his one-half undivided interest in the six small tracts of land transmitted to him by descent from his mother would, upon his death intestate and continously insane from prior to the appointment of his guardian until his death, nothing else appearing, descent as by law his one-half undivided interest in the six small tracts of land had not been descend, if his one-half undivided interest in the six small tracts of land had not been sold, conveyed and exchanged.
The transaction between the Bank of Martin County and the guardian of Alton Stallings was not a partition proceeding, as contended by respondents. It is generally held that a true partition among tenants in common of real property which they hold as an ancestral estate does not affect the ancestral character of the tract taken by each. The rationale of this view is that by such a transaction no new estate is acquired and no change in the title occurs. Each of the parties takes his allotment not by purchase, but is seized of it as much by descent from the common ancestor as he was by the undivided shares before the partition. Elledge v. Welch, 238 N.C. 61, 76 S.E.2d 340; In re Moran's Estate, 174 Okl. 507, 51 P.2d 277, 103 A.L.R. 227; Annotation, 103 A.L.R. 231. The transaction between the Bank of Martin County and the guardian of Alton Stallings resulted in Alton Stallings acquiring a legal title to a three-tenths undivided interest in the Ball Gray Farm, which he did not own before.
After the execution of the deed from the Bank of Martin County, Alton Stallings had a three-fifths undivided interest in the Ball Gray Farm: a one-fifth undivided interest transmitted by descent from his mother, a one-tenth undivided interest as a devisee under the will of his grandfather, and a three-tenths undivided interest received from the Bank of Martin County. As set forth above, his one-tenth undivided interest derived by will from his grandfather was an estate of nonancestral character, and the remaining part, a five-tenths undivided interest, was an estate of an ancestral character.
In compliance with an order of court duly entered in a special proceeding instituted for that purpose, J. G. Godard, guardian of Alton Stallings, by deed dated 5 November 1926, conveyed to C. C. Fleming and Ransom Roberson, their heirs and assigns, his ward's three-fifths undivided interest in the Ball Gray Farm for a consideration of $12,000$3,000 paid in cash, *313 and their four notes for $9,000 secured by a deed of trust upon the property conveyed. Fleming and Roberson having defaulted in the payment of their notes, the deed of trust was foreclosed, and the guardian of Alton Stallings became at the foreclosure sale the last and highest bidder for a three-fifths undivided interest in the Ball Gray Farm in the amount of $6,000. At the time of the sale Fleming and Roberson owed on their notes $10,086.48. No money passed. Elbert S. Peel, substituted trustee in the deed of trust, conveyed a three-fifths undivided interest in the Ball Gray Farm to the guardian of Alton Stallings.
When the three-fifths undivided interest of Alton Stallings, an insane person, in the Ball Gray Farm was sold by his guardian under court order to C. C. Fleming and Ransom Roberson, the proceeds of sale retained the character of real estate for the purpose of devolution on his death intestate while still insane, and would go as his interest in the farm would had it not been sold. G.S. § 33-32; Scull v. Jernigan, 22 N.C. 144; Gillespie v. Foy, 40 N.C. 280; March v. Berrier, 41 N.C. 524; Dudley v. Winfield, 45 N.C. 91; Jones v. Edwards, 53 N.C. 336; Bateman v. Latham, 56 N.C. 35; Wood v. Reeves, 58 N.C. 271; State ex rel. Allison v. Robinson, 78 N.C. 222; McLean v. Leitch, 152 N.C. 266, 67 S.E. 490; Brown v. Wilson, 174 N.C. 636, 94 S.E. 416. The cases we have cited deal with the proceeds of a sale of an infant's real estate under an order of court, but we think the same principle applies to the proceeds of a sale of an insane person's real estate under an order of court.
But Fleming and Roberson did not, and probably could not, pay their $9,000 of purchase money notes, which notes represented the major part of the proceeds of sale of Alton Stallings' three-fifths undivided interest in the Ball Gray Farm. When his guardian used these unpaid purchase money notes to buy back for his ward at the foreclosure sale under the deed of trust securing them the identical three-fifths undivided interest in the Ball Gray Farm, which his insane ward formerly owned, and which he sold to Fleming and Roberson under court order, we conclude that, according to the general rule as to the sale of an insane person's real property under a court order, and the purpose and intent of G.S. § 33-32, this three-fifths undivided interest in this farm, which the guardian bought back for his insane ward will descend under the facts here as this interest in the farm of his insane ward would descend if it had not been sold under court order.
The general rule, subject to an exception where the title passed but momentarily and without an intention of breaking the line of descent, is that if one sui juris who is in by descent conveys his legal title and interest in real property away, and it be conveyed back to him, the line of descent is broken, and he holds thereafter by purchase and not by descent. Coke's Commentary upon Littleton, Vol. 1, 12b, 1st American from the 19th London Ed., corrected 1853, with Notes by Butler and Hargrave and including the note to the text; Doe on the Demise of Harman v. Morgan, 7 T.R. 103, 101 Eng.Reprint 878; Lord Halsbury's Laws of England, Vol. 8, p. 87 (1909); Broom and Hadley's Commentaries, top page 660; Nesbitt v. Trindle, 64 Ind. 183; Holme v. Shinn, 62 N.J.Eq. 1, 49 A. 151; Dudrow v. King, 117 Md. 182, 83 A. 34, 39 L.R.A., N.S., 955, Ann.Cas. 1913E, 1258; Annotation 39 L.R.A.,N.S., 955; Annotation, Ann.Cas. 1913E, 1262; Roney v. Dyer, 25 Tenn.App. 545, 161 S.W. 2d 640 (certiorari denied by Tenn. Supreme Court 17 Feb. 1940); 26A C.J.S. Descent and Distribution § 14, pp. 547-548; 16 Am. Jur., Descent and Distribution, p. 845; Tiffany, Real Property, 3rd Ed., Vol. 4, p. 389; 12 Columbia Law Review, Breaking Descent by Alienation, p. 625. But in the instant case we have the sale of an insane person's real property under a court order, and we hold that under the facts here, and in view of the general rule as to the sale of an insane person's real property under a court order, and in view of G.S. § 33-32, *314 the conveyance to Fleming and Roberson, and the purchase back of the identical real property by the use of the unpaid purchase money notes did not break the line of descent.
G.S. § 29-1, Rule 4, reads: "Collateral descent of estate derived from ancestor. On failure of lineal descendants, and where the inheritance has been transmitted by descent from an ancestor, or has been derived by gift, devise or settlement from an ancestor, to whom the person thus advanced would, in the event of such ancestor's death, have been the heir or one of the heirs, the inheritance shall descend to the next collateral relations, capable of inheriting, of the person last seized, who were of the blood of such ancestor, subject to the two preceding rules." G.S. § 29-1, Rule 3, reads as follows: "Lineal descendant represents ancestor. The lineal descendants of any person deceased shall represent their ancestor, and stand in the same place as the person himself would have done had he been living." G.S. § 29-1, Rule 2, provides that females inherit with males, younger with older children, and as to advancements.
G.S. § 29-1, Rule 5, reads: "Collateral descent of estate not derived from ancestor. On failure of lineal descendants, and where the inheritance has not been transmitted by descent or derived as aforesaid from an ancestor, or where, if so transmitted or derived, the blood of such ancestor is extinct, the inheritance shall descend to the next collateral relation, capable of inheriting, of the person last seized, whether of the paternal or maternal line, subject to the second and third rules."
Alton Stallings was continuously insane from prior to the appointment of J. G. Godard as his guardian on 24 April 1916 until his death on 17 January 1956. He died intestate. He never married. His mother and father had predeceased him. He had one brother and no sister: his brother predeceased him, and had no issue. Alton Stallings' heirs at law are his first cousins, and the issue of his first cousins, of the blood of his father, and of the blood of his mother.
According to the uncontradicted evidence before us, Alton Stallings at his death had a one-tenth undivided interest in the Ball Gray Farm, which came to him as a devisee under the will of his maternal grandfather, his mother being alive when her father died, and this one-tenth undivided interest was an estate of nonancestral character, and descends, according to G.S. § 29-1, Rule 5, to his first cousins, and the issue of his first cousins, of the blood of his father, and of the blood of his mother.
According to the uncontradicted evidence before us, Alton Stallings at his death had a five-tenths undivided interest in this farm, which was, as set forth above, an estate of ancestral character, and this five-tenths undivided interest descends, according to G.S. § 29-1, Rule 4, to his first cousins, and the issue of his first cousins, of the blood of his mother.
M. S. Moore, guardian of Alton Stallings, disclaims in the answer filed by him and the other respondents any interest in the real property of his ward, except as an heir of his ward of the blood of his mother.
The assignment of error to the charge is sustained. A new trial is ordered.
New trial.
