Burgess v. Kirby

• Decision Date: 28 February 1886
• Citation: 94 N.C. 575
• Court: North Carolina Supreme Court
• Parties: JOHN BURGESS et als v. E. J. KIRBY et als.

94 N.C. 575

JOHN BURGESS et als

v.E. J. KIRBY et als.

Supreme Court of North Carolina.

February Term, 1886.

OPINION TEXT STARTS HERE

CIVIL ACTION, tried before Gilmer, Judge, and a jury, at January Special Term, 1886, of the Superior Court of DURHAM County.

The substance of this case, as presented by the record, is this: The plaintiffs allege, that George W. Trice, now deceased, in his lifetime, executed and delivered to the plaintiffs Martha Burgess formerly, and at the time of such delivery, Williams, and Joseph J. Williams, her son, a deed, whereby he conveyed to them the tract of land described in the complaint, which deed not having been registered, was lost. This action was brought against the heirs-at-law and the administrator of the said Trice, to compel the heirs to execute and deliver to the plaintiffs last mentioned, a proper deed, in place of that lost. The defendants mentioned made no defence.

In the course of the action, the other defendants, upon their application to the Court, suggesting that they had an interest in it, were made parties, and allowed to plead. In their answer, they allege that the said administrator brought his Special Proceeding in the Superior Court of the county of Wake, to sell the land in question to make assets to pay debts of his intestate--that therein a decree was duly entered, directing a sale of the land--that a sale thereof was made, and they became the purchasers--that this sale was reported to, and confirmed by the Court, and title to the land was duly made to them. They further allege, that the plaintiffs have no interest whatever in the land, and that moreover, they were proper parties defendant in the Special Proceeding mentioned, and are bound by the orders and decrees therein, and estopped from setting up any claim to the land.

The plaintiffs admit the Special Proceeding mentioned, and the sale of the land in pursuance of a decree therein made, and the purchase thereof by the defendants last mentioned; but they allege that the Court did not, in that behalf, obtain or have jurisdiction of the plaintiffs, Martha Burgess,--then Williams, and Joseph J. Williams; that the latter was an infant, under twenty one years of age, pending that proceeding, and had no general guardian; that no guardian ad litem was appointed for him, nor was summons duly served upon him. They further allege that the Special Proceeding and the decrees and orders therein, were irregular and invalid, and demand that they be “vacated and set aside,” and that the purchasers of the land be declared trustees for them, &c.

On the trial, the jury found in response to issues submitted to them, that the said Trice did execute and deliver to the plaintiffs, Martha and Joseph J. Williams, a deed for the land in question, as alleged; that this deed, not having been registered, was lost; that the plaintiff Joseph J. Williams became twenty one years of age, on the 3rd day of January, 1884, after the termination of the Special Proceeding mentioned; and that at the sale, the purchasers of the land had notice of the claim of the plaintiffs under the lost deed mentioned.

The plaintiffs put in evidence on the trial, a transcript of the record of the Special Proceeding mentioned, from which it appeared that a summons was issued in the proceeding against the plaintiff's Martha, and Joseph J. Williams, and the same was served upon them by the sheriff and return thereof made. The said Joseph J. was not described in the summons, or in any part of the record, as an infant.

It appears that the Court, “being of opinion that he could render no judgment in the premises, declaring the judgment of the Superior Court of Wake county to have been irregularly rendered, and that the same should be set aside; declined to render any judgment, but continued the cause until the plaintiffs should take the proper steps in Wake Superior Court to have said judgment declared irregular and set aside.” To which ruling both parties, plaintiffs and defendants, excepted, and appealed to this Conrt. This is the plaintiffs appeal.

Mr. John W. Graham, for the plaintiffs .

Messrs. R. H. Battle and Thos. M. Argo, for the defendants .

MERRIMON, J. (after stating the facts).

The whole case had been heard upon the merits, preparatory to final judgment. Nothing remained to be done to that end, and both the plaintiffs and defendants insisted that the judgment of the law should be entered by the Court, the former contending that it should be as proposed by them, and the latter as by them. The Court, however, declined to grant any judgment, but made an order staying further proceedings in the action, until the plaintiffs “should take proper steps in Wake Superior Court to have said judgment, (that in the Special Proceeding mentioned), declared irregular and set aside.” The plaintiffs did not ask for such stay--indeed they did not desire it, and plainly intimated that they did not deem it necessary, and would not take steps in a different tribunal, as suggested by the Court. If the plaintiffs had asked for such stay, it may be that the Court, in its discretion, could have granted it, but it seems to us very clear, that as neither party desired it, but on the contrary, insisted upon judgment, the Court ought to have granted it. When the case has been heard upon its merits, and nothing remains to be done...