Carraway v. Lassiter

• Decision Date: 26 September 1905
• Citation: 51 S.E. 968,139 N.C. 145
• Parties: CARRAWAY et al. v. LASSITER et al.
• Court: North Carolina Supreme Court

51 S.E. 968

139 N.C. 145

CARRAWAY et al. v. LASSITER et al.

Supreme Court of North Carolina

September 26, 1905

Appeal from Superior Court, Greene County; Bryan, Judge.

Petition by G. W. Carraway and others against T. U. Lassiter and others to set aside an executor's sale of real estate. From a judgment denying the petition, petitioners appeal. Affirmed.

In proceedings by an executor to sell real estate, an error of the clerk in appointing a guardian ad litem before any summons was issued was cured, where the clerk on the same day issued summons, which was duly served on the infant and on the guardian ad litem, who appeared and answered.

G. M Lindsay and A. D. Ward, for appellants.

Galloway & Albritton and Jarvis & Blow, for appellees.

CONNOR J.

This case, entitled in the transcript sent to this court "Carraway v. Lassiter," is a motion in a cause lately pending in the superior court of Greene county, in which R. L. Davis, executor of L. V. Whitehead, is plaintiff (petitioner) and Geo. W. Carraway and wife, Inez, and others are defendants. The plaintiff, R. L. Davis, executor instituted the original proceeding by filing a petition in said court in the usual form, asking for license to sell a portion of the lands of his testatrix to make assets to pay her debts, etc., pursuant to section 1436 et seq. of the Code. The record contains over 200 pages of printed matter, a large portion of which is irrelevant and immaterial. The facts, as we gather them from the petition, answer, and findings of the clerk, material to a decision of the questions raised by the exceptions of the petitioners, are:

Mrs. L. V. Whitehead, late of the county of Greene, died on the 14th day of December, 1895, seised and possessed of a plantation in said county, containing 1,100 acres, known as the "Streeter Place." She left a last will and testament, devising and bequeathing her entire estate, real and personal, to her granddaughter, Inez, for life, remainder to such children as she might leave surviving, and, in default of issue, to the Oxford Orphan Asylum, naming R. L. Davis executor and guardian to her said grandchild, who was then a minor. The said will was duly admitted to probate in common form, and the said Davis duly qualified as executor thereto. He was also appointed and qualified as guardian to the said Inez. Thereafter a caveat to said will was filed by the next of kin, and the issue raised duly docketed in the superior court of Greene county on the ______ day of March, 1896. At the time of her death the said L. V. Whitehead was indebted in an amount exceeding $4,000, the payment of which was secured by mortgages on the said land. On or about the 12th day of October, 1896, the said Davis, executor, filed his petition in the superior court of said county, containing the averments prescribed by the statute, and asking for an order to sell 846 acres, being a portion of said land. The remaining portion contained the dwelling house and improvements. The said Inez had, prior to the filing of said petition and during her minority, intermarried with Geo. W. Carraway, who was also a minor, being about 20 years of age. Upon the filing of said petition, it appearing that the said Davis was both executor and guardian, he asked that some suitable person be appointed guardian ad litem for his ward, etc. On the 12th day of October, 1896, and before any summons had issued, the clerk made an order appointing T. E. Barrow guardian ad litem for said infant defendants. The petition named as defendants the said Inez and her husband, J. L. Wooten and wife, who held mortgages on said land, and the orphan asylum. On October 15, 1896, the clerk issued a summons, directed to the sheriff of said county, commanding him to summon the defendants Inez and her husband, J. L. Wooten and wife, the orphan asylum, and the said T. E. Barrow, guardian ad litem, to appear and answer the petition on the 6th day of November, 1896. The petition is lost, and the facts in regard thereto are found by the clerk upon the affidavits of the former clerk and the attorney who filed the same. The order appointing the guardian ad litem and the summons are in the judgment roll. The sheriff made a return of said summons, stating that he had served the same on the defendants Carraway and wife by reading it to them, and on T. E. Barrow, guardian ad litem, by delivering a copy. The summons on J. L. Wooten and wife was served by the sheriff of Pitt county. There is no record of any service on the orphan asylum. On the return of the summons the said guardian ad litem filed his answer, drawn by the clerk and signed by said guardian, admitting the allegations of the petition. This paper is lost. On November 6, 1896, the clerk made an order reciting that proper service of the summons had been made on all the parties defendant, and that the guardian ad litem had filed an answer directing "the sale of the land described in the petition," after duly advertising the same, and that the executor make report to the court, etc. This order is on file. The said executor filed his report, stating that pursuant to said order (inadvertently referring to it as having been made on November 13th) he had sold the lands on December 7, 1896, at public auction at the courthouse door in Snow Hill, after duly advertising the same, and that T. U. Lassiter was the last and highest bidder, at the sum of $4,000, which was a full and fair price therefor, and that he was ready to comply with his bid, etc. The executor recommended that the sale be confirmed. On December 18, 1896, the clerk made an order confirming said sale, in which it was recited that due and legal service of summons was made on all of the defendants, and that they had admitted in their answers the allegations of the petition, etc. He directed the executor to collect the purchase money and make title to the purchaser. The purchaser paid the purchase money, and the executor executed to him a deed for said lands dated the 30th day of December 1896, which was recorded on the 30th day of December, 1897. The order of confirmation was approved by the resident judge of the district on December 26, 1896. The clerk finds that the attorney for the petitioner did not have any conversation with the guardian in regard to his appointment, or the preparation or filing of his answer. Nor did the petitioner attempt to use any undue influence to induce him to accept the guardianship; that said T. U. Lassiter was a bona fide purchaser of said land for full value and without any notice of any irregularity, if there was any, in the special proceedings under and by virtue of which the land was sold; that the sale was fair and open, and the land brought its full market value at the time of sale; that Lassiter had no notice of any irregularity in the proceeding, or of any cloud upon the title, or of any other matter or thing, if there was any, which prevented him from getting a good title; that he bid on said land at the urgent request of Geo. W. Carraway, husband of Inez, and that he became the purchaser, believing that he would get a good title under the decree of the court; that the personal estate of the said L. V. Whitehead was insufficient to pay her debts and that it was necessary to sell the land for that purpose; that the petition set out a description of the portion of the land to be sold. The petition contains a number of allegations and records referring to litigation pending in Pitt county, at the time of her death, by and against Mrs. Whitehead in regard to her property. It is charged that one of said actions affected the title to a portion of the lands sold by the executor. It also appears that on April 12, 1897, Lassiter sold and conveyed to R. L. Davis 330 acres of the Streeter place for about $5 per acre. There is no evidence tending to show any agreement prior to or at the time of the sale, or during the pendency of the proceedings between Davis and Lassiter, in regard to the purchase of any portion of the land by Davis. They both expressly deny any such agreement. It appears that prior to December, 1897, the said Geo. W. Carraway, having attained his majority, qualified as guardian of his wife; that at the December term, 1897, R. L. Davis, executor, the said Carraway and wife, and Carraway, as guardian, were made parties to one of the actions pending in Pitt superior court; and that they were also parties to an action pending Greene superior court. At the time the petition was filed by R. L. Davis, executor, Mrs Carraway had no issue. A child was born to her on November 18, 1896. The said child died in its infancy. Davis, executor, filed his final account November 7, 1899, showing the receipt and disbursement of the proceeds of the land sold by him. On the 7th day of November, 1904, this petition was filed by Geo. W. Carraway and wife and their children, all of whom were born subsequent to the final decree in Davis, Ex'r, v. Carraway. The purchaser, Lassiter, and R. L. Davis filed their answers to said petition, and the motion was heard by the clerk upon the petition, answers, affidavits, and oral testimony. He found the facts as set forth, and refused the motion. The petitioners noted a number of exceptions to the rulings of the clerk, and appealed to the judge of the district, who overruled the exceptions, approved the findings of the clerk, and affirmed his judgment. Petitioners excepted and appealed.

The petitioners except to a number of the clerk's findings for that there is no evidence to sustain them. The approval by the judge of the findings is conclusive, unless the exceptions can be sustained. We have read with care all of the affidavits, exhibits, and admissions. In our opinion there is not only evidence to sustain the clerk, but, in respect to the most...