Avery v. Guy

• Decision Date: 27 January 1932
• Docket Number: No. 576.,576.
• Citation: 202 N. C. 162,162 S.E. 217
• Parties: AVERY et al. v. GUY et al.
• Court: North Carolina Supreme Court

162 S.E. 217

202 N. C. 162

AVERY et al.

v.GUY et al.

No. 576.

Supreme Court of North Carolina.

Jan. 27, 1932.

Appeal from Superior Court, Avery County; Sink, Judge.

Carrie Avery, guardian, and others against E. C. Guy and J. Walter Wright, trading as partners in a lumber business under some firm name. From judgment of nonsuit, Carrie Avery, guardian, appeals.

Affirmed.

The court below rendered the following judgment: "This cause coming on for hearing and being heard before His Honor, and it appearing to the Court upon the admitted facts that the plaintiffs are barred and estopped from further asserting their claim in this cause, it is, therefore, considered, ordered and adjudged that the plaintiffs be and they are hereby nonsuited in this cause." Plaintiff Carrie Avery, guardian, excepted to the judgment as signed, assigned error, and appealed to the Supreme Court.

R. W. Wilson and Max C. Wilson, both of Burnsville, for appellant.

J. W. Ragland, of Marion, for appellees.

CLARKSON, J.

C. S. § 74 (as amended by Pub. Laws 1923, c. 55), in part is as follows: "When the personal estate of a decedent is insufficient to pay all his debts, including the charges of administration, the executor, administrator or collector may, at any time after the grant of letters, apply to the superior court of the county where the land or some part thereof is situated, by petition, to sell the real property for the payment of the debts of such decedent, " etc.

Upon the death of a person owing debts, the land descends to the heirs at law, subject to the payment of the same, after exhausting the personal property. The heirs of the deceased are necessary parties to the proceeding. C. S. § 80 (as amended by Pub. Laws 1924, Ex. Sess. c. 3, § 1).

It was contended by plaintiff Carrie Avery, guardian of the heirs at law of W. W. Avery, that defendants violated their timber contract with W. W. Avery; that defendants cut certain timber after W. W. Avery's death which was not included in the contract. The defendants set up an award under a consent order made June 21, 1930, in the present cause; Ira Vance, Sam G. Smith, and Vance Palmer being appointed to investigate and make an award, which was done.

The defendants contend that "settlement of this cause of action on the basis of $4.00 per M. feet, stumpage, for the amount of timber estimated and reported as aforesaid, which said offer these defendants accepted, and paid the said Vance accordingly, and took a release from him duly executed and for full value and before the filing of the complaint herein, which said release these defendants now plead in bar of the plaintiffs' action and right of recovery herein."

The release set up is as follows:

"Whereas, the above entitled action was instituted in the Superior Court of Avery County for the purpose of collecting the balance due by E. C. Guy and Company to W. W. Avery estate on account of timber cut from the lands of the said W. W. Avery estate, under a contract or deed made before the death of the said W. W. Avery, some of said timber having been cut beyond the boundaries of said deed by mistake; and,

"Whereas, by consent of the parties to said action, an estimate was made of the timber so cut beyond said boundaries, said estimate having been made by Sam Smith, Ira Vance and Vance Palmer, to be 50, 000 feet; and,

"Whereas, the said 50, 000 feet so cut by mistake, added to the amount cut from the boundaries of said deed, makes a total of 388, 963 feet at $4.00, making $1555.85, on which has been paid $1208.50, leaving a balance of $347.35. Which said amount is this day paid to Ira Vance, administrator of the estate of W. W. Avery, deceased, in full satisfaction and settlement...