Branch v. Griffin
| Decision Date | 05 March 1888 |
| Citation | 5 S.E. 393,99 N.C. 173 |
| Parties | BRANCH et al. v. GRIFFIN et al. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Nash county; JAMES H. MERRIMON, Judge.
Action by A. Branch and T. J. Hadley, plaintiffs, against William H., Margaret, Ophelia, Nina, Charles, and Annie Griffin defendants, to obtain a judgment for a foreclosure of a mortgage, and a sale of the land thereunder. William H Griffin had been appointed administrator of his father's estate, upon which the mortgage was given. Margaret Griffin was the mother of the administrator. The remaining defendants are the children of Margaret, and Presley Griffin the original mortgagor. Judgment was rendered for plaintiffs, and defendants appeal.
Under a will giving the use of certain land to the cestui que trust for life, and then for the benefit of her children, a sale of the property by her after the birth of a child, whose interests at the sale are represented by a guardian ad litem is valid as against children subsequently born.
F. A. Woodard and H. F. Murray, for plaintiffs.
Bunn & Battle, for defendants.
Civil action tried before MERRIMON, J., at spring term, 1887, of Nash superior court. It is alleged and admitted that on February 9, 1883, Presley Griffin executed to the plaintiffs his note for $791.65; and that on January 27, 1881, the said Griffin executed to William Barnes his note for the sum of $200; and that, for the purpose of securing the payments of these notes, the said Presley Griffin, and Margaret, his wife, executed to the plaintiffs a mortgage upon the real estate mentioned in the pleadings; that the sum of $121.25 has been paid on the note of $791.65, and that no other sum has been paid on either of said notes; and that Presley Griffin died intestate during the year 1884, and the defendants are his widow and heirs at law; and the defendant William Griffin has duly qualified as his administrator. The plaintiffs ask for judgment against William Griffin, administrator, etc., for the amount of the debts, interest, and cost, and against all the defendants for a foreclosure of the mortgage and sale of the land. The defendants file an answer and a supplemental answer, in which, after admitting the facts as alleged in the complaint, and the willingness of the administrator, defendant, to pay the plaintiffs' debts but for the want of assets, they say, by way of defense, that James Sullivant, of the county of Nash, died in 1851, seized in fee of the lands referred to in the complaint, leaving a last will and testament, which was duly proved at November term, 1851, of the county court of Nash, and recorded, a copy of which is filed as a part of the answer; that Margaret Hammond, mentioned in the said will, married Presley Griffin, and is the same person named in the complaint; and that the land mentioned in the said will is the same as that referred to in the complaint. They then insist that the pretended mortgage to the plaintiffs passed no title; that the order made to sell the land described in the complaint in the cause entitled Presley Griffin, ex parte, and under which it was sold on the 26th of June, 1869, when R. J. Morgan was the last and highest bidder, at the price of $451.75, was a fraud upon the rights of the defendants, and a mere contrivance on the part of Presley Griffin to destroy the equitable title held by the defendant, Margaret, for life, and after her death by her children; that at the time the petition was filed by Presley Griffin, for the sale of the said land, the defendants, except Margaret, were infants, or not then in esse, four of them having been since born, and none of them had any notice or knowledge of the said petition, nor of the decree and sale, nor of the confirmation thereof; that they have received no part of the price paid, or alleged to have been paid, for said land; and that they have never ratified or assented to the proceedings under which it was sold; that the price of $451.75 was grossly inadequate, and that no part of it was paid, the purchaser, R. J. Morgan, being "a mere man of straw," buying as agent for Griffin, taking a deed and immediately after reconveying to him. The defendants further say that the record of the proceedings under which the land was sold was sufficient to put the plaintiffs upon inquiry, and that they are not purchasers for value without notice, etc. The plaintiffs reply, among other things, that at spring term, 1856, of the court of equity for Nash county, Presley Griffin, and wife, Margaret, on behalf of themselves and their children, filed a petition against Jacob Strickland, trustee, etc., alleging that he was misusing the trust property, and asking for his removal, and the appointment of some suitable person in his stead; and that in said cause a decree was made, removing the said Strickland, and appointing Presley Griffin in his stead, requiring of him a bond, in the sum of $5,000, for the faithful discharge of his duties as trustee, which bond was duly executed; that thereafter, at spring term, 1869, a petition was filed by the said Presley Griffin, and wife, Margaret, and the defendants, the infants being represented by their next friend and trustee, their father, for a sale of the land now in controversy, and under an order made therein it was sold, etc.; that on February 9, 1883, Presley Griffin and wife, then in possession of said land, borrowed of the plaintiffs the sum of $791.65, and executed a mortgage thereon to secure its payment, and on the 12th of February, 1884, the said mortgage was renewed, including therein the note due to William Barnes. They deny all notice of any fraud or irregularity in the proceedings under which the sale was made, and say that Presley Griffin was a man of excellent character, and deny that he was a party to any fraud upon his children.
The material part of James Sullivant's will is as follows: "I give and bequeath all the aforesaid residue, my estate both real and personal, to Jacob Strickland, to him and his heirs, in trust and upon the condition, nevertheless, that the said Jacob Strickland will hold the same for the sole and separate use and benefit of Margaret Hammond, (now aged about fourteen years,) free from the control of any person whomsoever, and more particularly free from the control of any person she may hereafter marry, and, should she marry, then the said Strickland is to hold the said property in trust, for her, the said Margaret's, use as fully as she were a feme sole and unmarried, and free from the control and use and disposal of her said husband; and, at the death of the said Margaret Hammond, it is my will and desire that the said Jacob Strickland should hold the said property, both real and personal, for the use and benefit of the children of the said Margaret."
At the spring term, 1886, a petition was filed, after due notice, by the plaintiffs in this action against the defendants "alleging that the petition and decree of sale filed by Pressley Griffin and wife and others, for the sale of the lands, part of which is included in the mortgage sought to be foreclosed, in the above-entitled action, has been lost, mislaid, or destroyed, etc.," and asking to have the lost record restored, etc. This petition was heard before his honor Judge SHEPHERD, at spring term, 1886, of Nash superior court, when the defendant Margaret, and all her children, were present, and it was offered to prove by them that they had no knowledge of the proceedings instituted by Presley Griffin to sell the land, that they never authorized the use of their names, assented to the sale, or received any part of the proceeds. This evidence was excluded by the court, and the defendant excepted, but no appeal was taken. His honor gave judgment for the restoration and perpetuation of the lost records, etc. When the cause came on for trial, at spring term, 1887, his honor intimated an opinion that the matter of impeaching the proceedings under which the land was sold could not be effected in this action, but that the defendants should have brought a separate action for that purpose. The plaintiffs thereupon declared their wish to waive all such irregularities, and to proceed at once with the trial....
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