Brittain v. Mull

• Court: North Carolina Supreme Court
• Writing for the Court: DAVIS, J.
• Citation: Brittain v. Mull, 99 N. C. 483, 6 S. E. 382 (N.C. 1888)
• Decision Date: 30 April 1888
• Parties: BRITTAIN v. MULL et al.

6 S.E. 382

99 N.C. 483

BRITTAIN v. MULL et al.

Supreme Court of North Carolina

April 30, 1888

Appeal from superior court, Burke county; MACRAE, Judge.

Where a petition for the sale of land belonging to a decedent's estate names both the administrator and the widow as petitioners, the latter, although not named in the summons or in the order of sale, is bound by the decree in the case as a party thereto, whether she actually joined in the petition or not except in a direct proceeding to vacate the same.

S. J Ervin, for appellees.

DAVIS J.

This action was commenced in the superior court of Burke county before the clerk, in February, 1880, by the plaintiff, who is the widow of James Brittain, who died intestate in 1876 possessed of the lands described in the petition, against the administrator and heirs at law of her deceased husband, and Sarah Mull, as the purchaser of the land of the deceased husband at a sale thereof made to make assets to pay the debts of the deceased, there being a balance due from the estate of said deceased on the purchase money for said land. On the hearing before the clerk, August 30, 1886, the following facts, as appears from the statement of the case were found by him:

"That plaintiff filed her petition for dower on said land in January, 1877, and afterwards had said action dismissed, and in said action waived her right of dower in said land. That subsequently, to-wit, on the 24th day of February, 1877, the plaintiff, Ara Brittain, joined with S.E. Mull, the administrator of her deceased husband, and the heirs at law of her said husband, and filed a petition against Marcus Brittain, an infant heir, asking for a sale of said land for the purpose of creating assets in the hands of the administrator to pay debts; the said Ara Brittain being a plaintiff in said action, and stating that 'said land was subject to her dower,' 'but which right has been heretofore and is hereby waived,' and agreeing to take a child's part in lieu of dower. That said land was duly sold, and Sarah Mull became the purchaser, and paid the sum of $815 for said land, and the title was duly executed to her. That on the 26th of February, 1880, plaintiff began this action of dower against the administrator and heirs at law of her deceased husband, and Sarah Mull, the purchaser of the land. That at fall term, 1881, of Burke superior court, the following and only issues were submitted to a jury without exceptions, and found as follows: '(1) Did plaintiff, by her agreement in the clerk's office in 1877, waive her right of dower in said land. Answer. Yes. (2) Was such waiver void by reason of plaintiff's mental incapacity? A. Yes.' That on said verdict no judgment or order was entered, and no motion made by plaintiff until spring term, 1883. That at fall term, 1882, the original answer of defendants having been lost, the court ordered, by consent of parties, that the defendants have leave to supply the answer so lost or mislaid. That at spring term, 1883, the plaintiff moved (1) to strike papers from the files, with the answers filed by leave of the court at fall term, 1882, to supply the place of the original answer; (2) to remand cause to probate judge; (3) to have dower assigned to the plaintiff. Which three motions were refused by the court, and the plaintiff appealed. And, on return of certificate from supreme court, plaintiff moved, before the undersigned clerk, for dower, which motion he refused, and plaintiff appealed. And, this cause coming on now to be heard, the court is of opinion, and finds as matters and conclusions of law, that, as the jury found by the issues that the waiver by plaintiff of her dower was void by reason of plaintiff's incapacity, said waiver does not operate as a bar to her right of dower; but the court is of opinion that the waiver and judgment could not be attacked collaterally in this proceeding, but should be attacked by a direct proceeding. The court is of opinion, and finds as a conclusion of law, that the plaintiff also waived her dower in the proceeding entitled 'S. E. Mull, Administrator, et al. vs. Marcus Brittain,' wherein the plaintiff joined with the administrator and heirs against Marcus Brittain, an infant heir, in a petition asking for a sale of the lands to create assets to pay debts, plaintiff alleging 'that her right to dower had been heretofore and is hereby waived,' at which sale Sarah Mull became the purchaser. These facts are set up, and the estopped pleaded, in the amended answer filed by leave of the court at fall term, 1882, and plaintiff excepts to the court considering said answer as being filed. This the court finds operates as a bar to plaintiff's dower, and she is estopped certainly until the waiver and judgment in the proceeding entitled 'S. E. Mull, Administrator, et al. vs. Marcus Brittain,' is reversed by a direct proceeding for that purpose, if not estopped until the waiver and judgment in the proceeding entitled 'Ara Brittain vs. Robert Brittain' is reversed by a direct proceeding for that purpose. Whereupon it is adjudged by the court that plaintiff's motion be overruled, and the action be dismissed, and judgment entered against the plaintiff for costs.

"This 30th day of August, 1886.

"S. T. PEARSON, Clerk Superior Court, Burke County."

From the above order the plaintiff appealed. Notice waived.

The following are the plaintiff's exceptions to the findings of fact and conclusions of law by the clerk: "(1) That the clerk has found, without any evidence, that plaintiff waived her right of dower in action pending in the superior court of Burke county, entitled 'Ara Brittain vs. Robert Brittain and others,' and plaintiff asks that the record in said action, being the evidence upon which said finding is based, be set out in the clerk's statement on appeal. (2) That the clerk finds that the petitioner was a party plaintiff and waived her dower in the case of S.E. Mull Administrator, and others, vs.Marcus Brittain, and that she agreed to take a child's part in lieu thereof; whereas, her name does not appear in the summons in said action; and, in the petition where her name does appear, there is nothing said about taking a child's part. Plaintiff therefore asks that the clerk amend his findings so as to state the record as it is, and that he further find whether or not there is any mention in the order of sale in said action as to any waiver of dower, or said land being sold free from dower. (3) That, the name of plaintiff not appearing in the summons in said case of S.E. Mull et al. vs. Marcus Brittain, she is not estopped thereby, and the order of sale, or judgment, so called, does not estop her, because there is no mention of dower being waived in said order or judgment. (4) That there is no need of any direct proceeding to set aside a judgment which does not mention plaintiff, and where the plaintiff's name does not appear in the summons either as plaintiff or defendant. (5) That there is no estoppel as to plaintiff in the case of Ara Brittain vs. Robert Brittain and others, for the reason that the jury in this case only find--and the verdict of the jury is the only evidence of any estoppel--that there was an agreement in the clerk's office in 1877 to waive her dower; but whether said agreement was a matter of record does not appear; and, as no estoppel of record was at that time pleaded by the defendants, it must be held to embrace only a verbal agreement. (6) The defendant Sarah Mull cannot claim as an innocent purchaser, for the reason that no order was made that said land be sold free and discharged of plaintiff's right of dower. There is no record in the case of Ara Brittain vs. Robert Brittain and others of any waiver of dower by plaintiff, and the...