Burton v. Conigland

• Court: North Carolina Supreme Court
• Writing for the Court: SMITH
• Citation: Burton v. Conigland, 82 N.C. 99 (N.C. 1880)
• Decision Date: 31 January 1880
• Parties: R. O. BURTON, Administrator, v. FANNIE CONIGLAND and others.

82 N.C. 99

R. O. BURTON, Administrator,

v.FANNIE CONIGLAND and others.

Supreme Court of North Carolina.

January Term, 1880.

SPECIAL PROCEEDING to sell land for assets commenced in the Probate Court of HALIFAX County, and heard on appeal at Chambers on the 12th of December, 1879, before Seymour, J.

After proceedings were had according to law, the plaintiff as administrator of Edward Conigland, deceased, sold the land and Robert P. Hervey became the purchaser, but refused to comply with the terms of sale upon the ground set out in the opinion, to wit, that a good title could not be made by the administrator. Thereupon a rule was served on the purchaser to show cause why he should not pay the amount bid, and upon the hearing the probate judge held that a good title could be made, and ordered Hervey to comply with the terms of sale. He appealed from this order to the judge of the district who affirmed the judgment, and he then appealed to this court.

Mr. Thos. N. Hill, for the plaintiff .

Messrs. Day & Zollicoffer, for the respondent .

SMITH, C. J.

The plaintiff, administrator of Edward Conigland, filed his petition in the probate court against the heirs at law for license to sell the lands of the intestate, and under a decree therefor, sold a tract known as the “Pope Place,” and estimated to contain four hundred and fifty-two acres, to Robert P. Hervey, at the price of two thousand dollars. The latter refused to comply with the terms of sale, alleging that the intestate did not have an estate in fee in the premises. The plaintiff reported the sale and the failure of Hervey, and thereupon the court declaring its willingness to confirm the sale when the conditions were complied with, directed a rule to be served on the purchaser, requiring him to show cause why he had failed to do so. In answer to the rule, Hervey showed that the land formerly belonged to one William Doggett, who died in 1835, leaving a will in which he devises the same as follows: “I give and bequeath to my nephew John H. Ponton, my tract of land on Quankey known as ““Longs,” and which I purchased at the sale of the clerk and master in equity. My friend Mungo T. Ponton is to have the use and benefit of said tract of land until he, the said John H. Ponton, arrives to the years of twenty-one. If he dies leaving no child, I give it to his brother William Ponton, Mariah and Mary Ponton. Should they die leaving no child, I give it to brother Henry Doggett.”

The devisee, John H. Ponton, who at the time of the testator's death was but eight years of age, on attaining his majority came into possession under the will, and by his deed of August 15th, 1856, purporting to pass the entire estate in fee, with full warranty, conveyed the land to William B. Pope, and on the same day Mungo T. Ponton released to him all his interest therein. Subsequently Pope conveyed to the intestate the land now in controversy, parcel of that devised by the testator William Doggett and conveyed as aforesaid.

The only question presented by the respondent is as to the sufficiency of the title derived under the will and thence transmitted to the intestate. The probate judge decided that the devisee took an estate in fee and overruled the defence. On appeal the judgment was affirmed by the judge of the...