Ward v. Lowndes

• Decision Date: 09 June 1887
• Court: North Carolina Supreme Court
• Parties: WARD and others v. LOWNDES and others.

96 N.C. 367

2 S.E. 591

WARD and others

v.LOWNDES and others.

Supreme Court of North Carolina.

June 9, 1887.

Appeal from Buncombe county.

L. de B. McCrady, for plaintiffs.

T. F. Davidson, for defendants.

MERRIMON, J.

The plaintiffs, except Henry Marrigalt, are the legatees, devisees, and heirs at law of Joshua Ward, deceased, and brought this action simply to recover the possession of the land described in the complaint. The principal defendant, Charles T. Lowndes, in his answer denied the material allegations of the complaint, except that the plaintiffs were such heirs and devisees. He alleged, as matter of defense, that the said ancestor of the plaintiffs died insolvent in the state of South Carolina, leaving a last will and testament which was duly proven in that state; and a copy thereof, duly authenticated, was allowed, filed, and recorded according to law in the county of Transylvania in this state; and, the executrix therein named having renounced her right to qualify as such in this state, F. J. Whitmire was appointed administrator cum testamento annexo of this will; that he obtained judgment against this administrator in the superior court of the county named for the sum of $24,500.50, with interest thereon from the date of the judgment; that thereafter the administrator brought special proceedings, in the court mentioned, to obtain a license to sell the land in question and other lands to make assets to pay the debts named and other debts of the testator; that, under and in pursuance of orders and judgments in these proceedings, the lands were sold, the defendant purchased so much of the same as is now in controversy, the sale was confirmed, the purchase money was paid, and title, under his direction, was made to his wife, Sabina E. Lowndes; that these special proceedings were regular and effectual, and he was placed in possession of the land about 1872, and has been in possession of the same ever since, etc.

The plaintiffs afterwards, by consent of parties, amended their complaint, reiterating that first filed, and alleged that the special proceedings mentioned and relied upon by the defendants in their answer were fatally irregular, fraudulent, and absolutely void; that the present plaintiffs, devisees and heirs at law, were, at the time of such proceedings, infants of tender years; that they were not parties to them in any just sense, or in contemplation of law, nor were they lawfully represented therein by any general guardian or guardian ad litem, as allowed and required by law in such cases; that the court had no jurisdiction of them; that the supposed judgment was not such in law; that it was not a just one or for an amount honestly due the defendant Lowndes, but was obtained by fraud and collusion between him and the administrator named, etc.

The defendant answered the amended complaint, alleging the regularity, fairness, justice, and validity of the proceedings mentioned; the justice and fairness of his judgment; the sale; the due application of the assets; the proceeds of the sale of the land, leaving a large part of his and much of the other debts unpaid; the effectiveness of the orders, judgment, sale, etc.

The following is so much of the case settled on appeal as is necessary to a proper understanding of the opinion of the court:

The following issues in the above-entitled cause were submitted to the jury, resulting in the responses as indicated: “What are the plaintiffs' damages? Answer. One hundred and twenty-five dollars per year,-one thousand eight hundred and seventy-five dollars. What would be the present value of the land in controversy without the permanent improvements made upon it by the defendants? A. Eight thousand dollars. What is the present value of the land in controversy, including the value of the permanent improvements? A. Seventeen thousand dollars.”

A trial by jury as to all other issues of fact was waived by the parties, and it was agreed that the court should find all facts not found by the jury, and decide all other questions of fact and law involved in the controversy. There upon the court finds the following facts:

“(1) On the twenty-fifth day of April, 1870, F. J. Whitmire, administrator with the will annexed of Joshua Ward, deceased, instituted in the superior court of Transylvania county a special proceeding for the sale of land for assets against Constantia Ward, the widow, and Florence, Samuel Mortimer, and Joanna Ward, children, heirs at law, and devisees of Joshua Ward.

“(2) The defendants in said proceeding were non-residents of this state, and residents in the city of Charleston, state of South Carolina,-Florence and Joanna residing with their step-mother, Constantia Ward, and Samuel Mortimer with Rev. A. Toomer Porter, his testamentary guardian as appears in the will, all being under fourteen years of age. Florence and Joanna had no testamentary or general guardian; but by the will of the said Joshua Ward, which had been admitted to probate in both North and South Carolina, the said Rev. A. Toomer Porter, also a resident of Charleston, S. C., was appointed guardian of Samuel Mortimer. It did not appear that any general guardian had been appointed for any of the infant defendants by any order or decree or judgment of any court in North Carolina.

“(3) That Messrs. Bailey & Martin, attorneys at law, were the counsel for the administrator, and as such conducted this proceeding. Mr. Whitmire was a young lawyer (having been a student of Messrs. Bailey & Martin) residing in Transylvania county, and at one time-when and for how long does not appear-was associated in the practice in Transylvania county with Messrs. Bailey & Martin. Whitmire was dead at the time of the commencement of this action. The partnership between Messrs. Bailey & Martin was dissolved some time during the year 1870 or 1871, and before the institution of the proceedings hereinafter more particularly referred to, marked “No. 2;” but, in drawing many of the orders and decrees and report of sale in the second proceeding, Mr. Martin acted for the plaintiff Whitmire.

“(4) In the summer or fall of 1870 a Mr. Cheeseborough, a citizen of Buncombe county, received a letter from C. T. Lowndes stating that he had recovered a large judgment against Ward's estate, and requesting him (Cheeseborough) to purchase, if he could do so at a reasonable price, a tract of land in Buncombe county known as ‘Rock Hall,’ which he understood was to be sold as a part of Ward's estate to pay his debts. On receipt of this letter, Cheeseborough called on Messrs. Bailey & Martin, and ascertained from them that the property in Transylvania county now in controversy, as well as Rock Hall was to be sold; that Cheeseborough then heard of the sale of this property for the first time. Cheeseborough instructed Mr. Martin, of Bailey & Martin, to bid in the Transylvania property for Mr. Lowndes. He then wrote Mr. Lowndes what he had done, and received his approval of what he had done as to bidding it off.

“(5) At the sale, on the third day of October, 1870, the bidding was lively, there being a good deal of competition, and the land was finally knocked down to C. T. Lowndes in the sum of six thousand five hundred and fifty dollars, Mr. Martin, of the firm of Bailey & Martin, bidding for him.

“(6) The estate of Joshua Ward was insolvent, there being then docketed against his administrator in Transylvania county judgments amounting from twenty-seven thousand to thirty thousand dollars. Among them was a judgment in favor of C. T. Lowndes, founded upon a bond executed to Alexander Robertson on the sixteenth day of June, 1863, to secure the sum of sixteen thousand dollars, which said judgment amounted to twenty-four thousand five hundred dollars and fifty-five cents. This bond was given in satisfaction of the amount due from Joshua Ward to the firm of Robertson, Blacklock & Co., of Charleston, S. C., being the balance of his account with them up to the sixteenth day of June, 1863. This account showed a balance due from Ward on June 30, 1858, of $5,685.82; on the thirtieth of June, 1859, $9,737.32; on the thirtieth day of June, 1860, $12,286.74; on the first of November, 1862, $15,809.47; on the first of May, 1863, $15,615.47. The complaint in this action was verified, and no answer was filed. The scale of Confederate money established by law in South Carolina was, at the date of the bond, $1 in gold to $5.13 in Confederate; in North Carolina, $1 in gold to $6.15 in Confederate. The summons was in Whitmire's handwriting. The body of the complaint in Mr. Martin's. Mr. Whitmire was the only resident lawyer at Brevard, the county-seat of Transylvania county, and was often requested by the clerk to write for him, and prepare papers requiring legal form. Thus many orders in these proceedings were drawn by Mr. Whitmire at his (the clerk's) request.

“(7) On the coming in of Mrs. Ward's answer, and upon her request therein that Thomas L. Gash, Esq., be appointed guardian ad litem for Florence and Joanna Ward, the clerk of the court applied to Mr. Gash to act as guardian ad litem. Mr. Gash was a gentleman of intelligence and character, and had frequently acted as deputy-clerk. After some inquiry as to the nature of his duties, and having no knowledge of them, he consented to act, and was duly appointed and qualified. He then examined into the condition of the estate, corresponded with the said A. Toomer Porter, examined the judgments against Ward, and from these and other sources satisfied himself that the estate was insolvent. He filed his answer, which, except the signature, was in the handwriting of Whitmire, the administrator, who was requested by him to put it in proper form. Mr. Gash's proceeding and action in the matter were done in good faith. He had never seen, did not know, and did not meet Mr. Lowndes until after the second sale.

“(8) After the sale of October 3, 1870, and its confirmation, Judge Bailey,...