The opinion
Yahsee, J.
The record does not disclose a disavowal of the duties growing out of the trust created- by the charter of the plaintiff corporation, and the conveyances to it, more than three years prior to the date of the institution of this action. The facts now appearing are not sufficient to constitute notice to plaintiffs that such duties would no longer be performed by the defendant lessee, and that the hospital in controversy would not be operated as a community hospital, but for the private gain of the defendant, J. L. Nicholson.
In our opinion, the facts set out in the judgment appealed from, fall short of what is necessary to constitute sufficient disavowal of an active continuing trust, which will put the
cestui que tnist
to his right of action to secure performance. The law does not favor, or aid, him who attempts to put an end to a trust, and, therefore, he must make such
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a disavowal in no uncertain terms and without qualification. It must be done by clear and unequivocal acts or words brought to the notice of the
cestui que trust. Rouse v. Rouse,
167 N. C., 208 ;
Rouse v. Rouse,
176 N. C., 171 ;
University v. Bank,
96 N. C., 280, 287 .
The property of the plaintiff Hospital Corporation is impressed with the trust contained in its charter, and the conveyances to it. Its certificate of organization shows a positive intention to protect its welfare, and the deed from the town of Washington provides for a reversion in case of failure to maintain and operate a hospital in accordance with the terms of the deed for five successive years.
The relation of the defendant lessee is such, that he cannot obtain a conveyance, by lease or otherwise, that is for, or contemplates, a use of the corporate property for purposes at variance with its declared uses. This relation prevents the three years statute of limitations from applying.
Besseliew v. Brown, 177
N. C., 65;
Hilton v. Gordon,
177 N. C., 342 ;
Steel Co. v. Hardware Co.,
175 N. C., 450 ;
Bassett v. Cooperage Co.,
188 N. C., 511 ;
Johnston v. Overman,
55 N. C., 182 ;
Blount v. Robeson,
56 N. C., 73 ;
Davis v. Cotten,
55 N. C., 430 ;
West v. Sloan,
56 N. C., 102 .
The lease in controversy provides that, “the party of the second part (J. L. Nicholson) is to have full control of the operation of said hospital, and he is to attend to employing and paying nurses, etc., and he is to attend to buying all supplies and equipment used by him in the operation of said hospital, under this lease. The said party of the second part is to manage and look out for said property the same as if it were his own, except, of course, that he is not to sell or in any way encumber any of said property.”
We are, therefore, of the opinion that the pleaded three years statute of limitations is not applicable.
The ten years statute of limitations would be applicable if there were a sufficient basis in fact.
Norcum v. Savage,
140 N. C., 472, 474 ;
Norton v. McDevit,
122 N. C., 759 ;
Latham v. Latham,
184 N. C., 56 ;
Sexton v. Farrington,
185 N. C., 339 ;
Little v. Bank,
187 N. C., 1 ;
Lynch v. Johnson,
171 N. C., 611 ;
Phillips v. Lumber Co.,
151 N. C., 520 .
Therefore, let this cáse be remanded to the Superior Court of Beaufort County,^ to the end that a further trial may be had herein, in accordance with the former opinion of this Court in
Hospital v. Nicholson,
189 N. C., 44 .
Reversed and remanded.