Bolton v. Harrison, 309
| Decision Date | 20 May 1959 |
| Docket Number | No. 309,309 |
| Citation | 108 S.E.2d 666,250 N.C. 290 |
| Court | North Carolina Supreme Court |
| Parties | Rachel C. BOLTON and husband, Richard Bolton; Martha C. Davis and husband, Sidney Davis; Carrie C. Murphrey and husband, W. R. Murphrey; Estelle G. Lane and husband, George Lane; Dorothy Roberts and husband, John Milton Roberts; Mignon C. Sullivan and husband, Clyde Sullivan; J. W. Coley, Jr., and wife, Faye Coley; and Frank Coley, Minor, by his Next Friend, Mrs. Bettie Coley, v. Mrs. G. A. (Doris) HARRISON, Widow; Alford Harrison and wife, Lydia Harrison; Frank Harrison and wife, Mildred Harrison; Bernard Harrison and wife, Doris Harrison; David Lee Harrison, Minor; LeRoy Harrison and wife, Joyce Harrison; Douglas Harrison, a Minor; Faye Harrison, a Minor; Margaret H. Hux and husband, Clifton Hux; Elizabeth H. Van Landingham and husband, Paul Van Landingham, Ruth Lovegrove and husband, Joe Lovegrove. |
Paul B. Edmundson, Jr., Goldsboro, Henry C. Bourne, Tarboro, for defendants.
J. Faison Thomson & Son, by J. Faison Thomson, Goldsboro, for plaintiffs.
The plaintiffs' appeal challenges the nonsuit as to all plaintiffs except Frank Coley upon the grounds (1) the Land Bank foreclosure sale was void for fraud, collusion, and the breach of trust, and for want of service of process; and (2) Paul Coley, Luther Coley, and J. W. Coley acquired title to the tract of land described in Item 5 of the Will under such circumstances as in equity made them trustees for the plaintiffs' interests as remaindermen.
Two of the plaintiffs now contend they were not served with process in the foreclosure proceeding in 1930. Neither could corroborate the other's claim. The return of the sheriff shows service. The court found that all parties were represented. Harrington v. Rice, 245 N.C. 640, 97 S.E.2d 239, 241. Any other rule would place solemn judicial proceedings in jeopardy upon the flimsy foundation that one or more of the parties may have forgotten that process was served. Where the record shows service, as here, the remedy must be by motion in the cause. Jordan v. McKenzie, 199 N.C. 750, 155 S.E. 868; Caviness v. Hunt, 180 N.C. 384, 104 S.E. 763.
There is no question but that J. W. Coley was properly before the court. He was the father of the plaintiffs, two of whom claim they were not served. He was the life tenant. It is seriously debatable whether service on him as life tenant would not be sufficient even if the remaindermen, his children, were not served in a foreclosure proceeding. Yarborough v. Moore, 151 N.C. 116, 65 S.E. 763; Carraway v. Lassiter, 139 N.C. 145, 51 S.E. 968.
The plaintiffs allege fraud, collusion, and carelessness in permitting the Land Bank to foreclose the mortgage which the testator placed upon all his real estate and which was unsatisfied at his death. They fail to allege or prove any defense to the foreclosure proceedings. While they allege, they fail to offer proof of actual fraud. Conceding this failure, they contend the inadequate price and the purchase at the sale by the executors, and later by their father, furnish proof sufficient to establish a trust in their favor. In support, they offer two witnesses who looked back from 1958 to 1930 and testified the land was worth seventy thousand dollars 28 years ago. On the contrary, one sale after another, under order of the court, under the power of sale, in deeds of trust and mortgages, fail utterly to disclose any such value. The value now fixed by the witnesses as of 28 years ago shows only too well how much had been forgotten in 1958 about the value of property in 1930. The testimony of value was the result of a backward look after 28 years. Franklin County v. Jones, 245 N.C. 272, 95 S.E.2d 863, 869.
The plaintiffs contend the fraud originated by reason of the purchase by the executors at the foreclosure sale in 1930. Prior to the sale, however, on January 25, 1929, the executors had completed the settlement of the estate in all matters with the exception of the outstanding mortgage to the Land Bank. The will gave the executors discretionary authority to rent all lands, and to suspend the effective date of all devises accordingly until the rents discharged all debts of the estate. On February 14, 1929, all the children of the testator entered into a contract to pay a named trustee semiannual payments which, if carried out, would liquidate the mortgage to the Land Bank within a period of ten years. Paul Coley made immediate payment of his share in cash. The others agreed among themselves as to the amount each should pay. J. W. Coley agreed to make semiannual payments of $311.30 for the 10-year period as his share. Failure of the parties to make the payments as agreed resulted in a default in the mortgage to the Land Bank.
On May 2, 1930, the Land Bank instituted an action in the Superior Court of Wayne County to foreclose the mortgage, the full amount having become due under the acceleration clause. All devisees were made parties. The court appointed a guardian ad litem for the children, born and unborn, of J. W. Coley because of their interest under Item 5 of the will. All were made parties to the foreclosure proceeding except Frank Coley who was not born until years later. The judgment of foreclosure recites that 'the minor defendants, naming them * * * and unborn persons who may have right in the land (by guardian ad litem) have filed answers.' The court then rendered judgment for the balance due on the mortgage, decreed foreclosure, and appointed two eminent lawyers commissioners to sell the land, including the 63.7 acre tract here involved.
After due advertisement the commissioners offered the land for sale. Paul Coley and Luther E. Coley became the purchasers for $12,860.41, subject to accrued taxes. After 20 days the court confirmed the sale and ordered the commissioners to execute deed to the purchasers. The deed was executed and recorded on October 8, 1930. On the same day Paul Coley and L. E. Coley, and their wives, executed a deed of trust to Chickamauga Trust Company to...
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