Cates v. Pickett

• Decision Date: 28 March 1887
• Citation: Cates v. Pickett, 97 N. C. 21, 1 S. E. 763 (N.C. 1887)
• Parties: CATES v. PICKETT.
• Court: North Carolina Supreme Court

1 S.E. 763

97 N.C. 21

CATES v. PICKETT.

Supreme Court of North Carolina

March 28, 1887

Appeal from superior court, Orange county.

A sale by an administrator of lands of the intestate, void by reason of insufficiency of service upon an infant heir, cannot be set aside 12 years afterwards, when the land has passed into the hands of a bona fide purchaser.

W. W Fuller and Graham & Ruffin, for plaintiff.

Batchelor & Devereux, for defendant.

DAVIS J.

This was a motion made in the cause to set aside a sale made by the plaintiff as administrator of E. W. Pickett, heard before CLARK, J., at chambers, and brought by appeal to this court. On the twenty-seventh day of March, 1874, the plaintiff, as administrator, filed a petition in the superior court of the county of Orange against the defendant, the only child and heir at law of the said E. W. Pickett, for a sale of the land belonging to the estate of his intestate, to make assets for the payment of debts and costs of the administration. The petition was duly verified, and on the same day a summons was issued by the clerk of the superior court of Orange for the defendant to appear "within twenty days after the service, and answer the complaint," etc. On the same day the said summons was indorsed: "Service accepted, and all errors waived," and signed by Martha E. Pickett. On the same day a petition was filed in writing by the plaintiff, setting forth that the defendant was the only child and heir at law of his intestate; that she was a minor without general or testamentary guardian, and asking the "court to appoint some suitable and discreet person as guardian ad litem of the said Martha E. Pickett, upon whom service of summons may be made, and who may appear and answer in this action as such guardian." On the same day an order was made appointing John W Blackwood guardian ad litem, and he filed an answer, stating that there was no objection to the sale, etc. On the seventh day of May, 1874, two orders, as appears from the record, were made in the cause; the first stating that "upon reading and filing the petition in this case, and it appearing to the satisfaction of the court that all proper persons have been made parties to the action, and accepted service of the summons, and no answer has been filed, and there appearing no reason why the land mentioned in the petition should not be sold for the purpose of paying the debts of the deceased, it is therefore ordered," etc. The second order reciting that "this cause coming on to be heard upon the petition and affidavit of Levi F. Cates, and being heard, and it appearing to the court that the personal estate of E. W. Pickett, deceased, is insufficient to pay the debts and charges of administration, it is therefore ordered and decreed that the administrator have license to sell," etc., setting forth the time of notice, place, terms of sale, etc. On the seventeenth day of June, 1874, the plaintiff made his report of the sale, setting forth, among other things, that the land was sold on the fifteenth of June, when Martha F. Cates became the highest bidder and purchaser, at the price of $475, and had complied with the terms of the sale, and that the "land brought a good price," and recommended a confirmation of the sale. On the nineteenth of June an order was made confirming the sale, and directing title to be made to the purchaser upon the payment of the purchase money. Some time in the year 187-, Martha F. Cates sold the land to J. W. Gattis, who afterwards sold separate portions of it to J. R. Gattis, Pendleton Cole, and J. L. Watkins, and the portion purchased by J. L. Watkins was afterwards sold by him to W. W. Fuller. This was a motion by the defendant, who is now the wife of J. H. Woods, after notice to Levi F. Cates, Martha H. Cates, J. W. Gattis, J. R. Gattis, W. W. Fuller, and Pendleton Cole, heard on the fifth day of May, 1886, before the superior court of the county of Orange, "to set aside the judgment, orders, and decrees in said case, and to hold the sale, and all proceedings thereunder, ineffectual to preclude the defendant from setting up title to the land mentioned in the petition." The motion was based upon the alleged ground that the court had acquired no jurisdiction of the person of the defendant.

The affidavit of J. H. Woods was filed, setting forth that Martha E. Pickett was born on the fourth day of April, 1861, and intermarried with affiant in December, 1880; that the indorsement on the summons was in the handwriting of the counsel of the petitioner, Levi F. Cates, and that the signature of Martha E. Pickett to the indorsement was in her handwriting; that she was then an infant under 14 years of age; and the indorsement was signed, after the day it bears date, at the command of said Levi F. Cates, under whose control, as her step-father, she then was. An affidavit of Martha H. Cates, the mother of the defendant, and wife of the plaintiff, was filed, setting forth the age of her daughter, and that, after she (the daughter) was 21 years of age, she received from L. F. Cates and herself the sum of $25, derived from the sale of the land, accompanied with a copy of the receipt therefor, signed by the defendant...