Burney v. Holloway
| Decision Date | 28 November 1945 |
| Docket Number | 452 |
| Citation | 36 S.E.2d 5,225 N.C. 633 |
| Parties | BURNEY et al. v. HOLLOWAY et ux. |
| Court | North Carolina Supreme Court |
The controversy here is over a contract of purchase and sale made between the plaintiffs and the defendants and the validity of the title which the plaintiffs have offered the defendants by tender of a deed which defendants decline to accept. Plaintiffs claim that the title is good and that they are holders in fee under the will of W. F. Moody, Sr. and conveyance of the lands to the testator through sale under a deed of trust. The defendants raised a question as to the title under each instrument.
The record shows that upon the 'exhibition' of the Moody will before the Clerk of the Superior Court in Wake County, the present plaintiffs filed a caveat. This resulted in a proceeding to probate the will in solemn form and a negative response to the issue of devisavit vel non upon the trial. At the same term of court the Thompson Orphanage made a motion to set aside the verdict and judgment on the grounds of mistake and excusable neglect, which was declined. Still at the same term, the presiding Judge set the judgment and verdict aside, ex mero motu, in the exercise of his discretion, for other reasons. Subsequently, in a compromise at another term of court, the Thompson Orphanage released its claim for a consideration of $900 'in favor of the estate,' asked to be permitted to withdraw its motion to set aside the judgment invalidating the will, and a motion for nonsuit of the proceeding was made and allowed and the will was subsequently probated in common form.
The plaintiffs, deeming themselves to have a title in fee under the will, entered into a contract with defendants in which plaintiffs agreed to sell, and defendants to buy, the real estate described in the will at the purchase price of $3000. The plaintiffs tendered a deed to the defendants, which is admittedly sufficient in form to convey the title, but defendants declined to accept the deed and pay for the land as agreed, basing the refusal on the grounds (1) that the testator himself did not have a clear title because he had bought at a sale under a deed of trust which appeared on the record as having been satisfied and cancelled; admitting however, that the substitute trustee had corrected this entry as error, and conveyed to Moody under the terms of the deed of trust; (2) and because, as contended the plaintiffs did not have a clear title under the provisions of the will.
Plaintiffs brought suit, appropriate pleadings were filed, and the cause came on to be heard by Judge Clawson L. Williams, by consent, without a jury, upon allegations and admissions in the pleadings, and stipulations by the parties. From the judgment requiring them to accept the deed and pay for the land as agreed, the defendants appealed.
The will is as follows:
'Jan. 18, 1940.
W. F. Moody, Jr., is a single person, and Peggy Moody Burney is the mother of three children, now living.
Wilson & Bickett, of Raleigh, for defendants, appellants.
T. Lacy Williams, of Raleigh, for plaintiffs, appellees.
Since a proceeding to probate a will in common form is in rem, it has been held--as far as we know without exception in this jurisdiction--that when the issue of devisavit vel non has been raised, the proceeding is not subject to nonsuit at the instance of the propounders or other parties concerned. In re Will of Evans, 223 N.C. 206, 25 S.E.2d 556; In re Westfeldt's Will, 188 N.C. 702, 705, 125 S.E. 531; Collins v. Collins, 125 N.C. 98, 34 S.E. 195. Whether the disregard of this rule results in a void, or merely irregular, judgment we need not inquire, since in either case the proceeding would not be irrevocably retired from the docket against a party or privy whose right to move was still subsisting. And the Court would not be justified in taking jurisdiction of the rights of parties under a will the validity and testamentary character of which was being tested in another jurisdiction.
However, the parties at whose instance the nonsuit was allowed are before the Court, and will be bound by its judgment, on the principle of estoppel, if none other; and other persons who might claim as beneficiaries are not prejudiced by accepting the contest over the will in the former proceeding as concluded.
1. We do not regard the objection relating to the erroneous cancellation of the deed of trust under authority of which the testator held as meritorious. It was an evident error, based upon the sale and the adequacy of the proceeds, and its correction on the record is sufficient.
2. Under one view of construction which has been presented to...
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