Coffin v. Cook

• Decision Date: 28 April 1890
• Citation: Coffin v. Cook, 106 N.C. 376, 11 S.E. 371 (N.C. 1890)
• Parties: COFFIN et al. v. COOK.
• Court: North Carolina Supreme Court

11 S.E. 371

106 N.C. 376

COFFIN et al. v. COOK.

Supreme Court of North Carolina

April 28, 1890

Appeal from superior court, Mecklenburg county; H. G. CONNOR, Judge.

Action by Alabama Coffin and others against G. A. Cook, to recover the possession of certain land. From the judgment for defendant plaintiffs appeal.

Where the proceeding by an executor to sell testator's land to pay debts, and all orders and the judgment therein, are entitled in the name of the testator's executor, and the deed so describes him, and he therein professes to execute it by virtue of his power as such executor, the deed sufficiently refers to the order which authorized its execution, without formal recitals in reference thereto.

E. T Cansler, A. Burwell, and P. D. Walker, for appellants.

C. W Tillet, for appellee.

MERRIMON C.J.

The plaintiffs showed apparent title to the land described in the complaint. The defendant relied upon the validity and sufficiency of orders and the judgment in a special proceeding, wherein the feme plaintiffs were parties defendant to sell this land to make assets to pay debts of the testator therein named. He contends that the proceeding mentioned was valid, and at the sale therein of the land he purchased it paid the purchase money, and obtained a deed of conveyance therefor, under and in pursuance of an order of the court sufficient to put the title to it in him.

The plaintiffs insist "that said special proceedings are void, for that no summons was served on H. K. Reid, guardian ad litem of the feme plaintiffs, who were infant defendants in said special proceeding, and that said guardian did not appear or answer in said special proceedings, and, further, that no notice of the motion to appoint said guardian was served on said infants." It appears from the record of the special proceeding that the feme plaintiffs were defendants therein,--one of the age of six, and the other of four, years; that "notice issued to" them, and that W. K. Reid was appointed guardian ad litem for them. It does not appear affirmatively that he was served with process, nor that he answered for his wards. It does appear from the record that a summons was issued for them and others, and that the sheriff returned the same as to them as follows: "Executed August 25, 1870, by delivering ___ a copy to Alabama and Teresa Downs, who are infants;" and he also returned that he had served the same by delivering a copy "to Nancy Downs, mother of Alabama and Teresa Downs, who are infants." Such service was made as prescribed by the statute, (Code, § 217, par. 2,) declaring how service of summons shall be made on minors. Regularly, the guardian ad litem should have been served with summons and a copy of the complaint, (Id. § 181) and he should have made answer for the infant defendants. This was not done, as far as appears. There was hence possible irregularity. The presumption, however, is that the guardian was regularly appointed, and that he took notice of his appointment; nothing to the contrary appearing in the record. But such irregularity, if it existed, did not render the special proceeding, or the orders, judgment, and other proceeding therein, void. The court obtained jurisdiction by virtue of the service of process,--the summons. The infant defendants were before the court, and the presumption is in favor of the sufficiency and validity of what was done in the course of the proceedig. At most, the orders and judgment were only voidable, and they could not be attacked collaterally. This could be done only by proper motion in the proceeding, except that the same might be attacked for fraud by an independent action brought for that purpose. England v. Garner, 90 N.C. 197; Hare v. Hollomon, 94 N.C. 14; Sumner v. Sessoms, Id. 371; Syme v. Trice, 96 N.C. 243, 1 S.E. Rep. 480; Tyson v. Belcher, 102 N.C. 112, 9 S.E. Rep. 634.

On the trial it was admitted that the petitioner (executor) in the special proceeding sold the land therein specified (that now in controversy) in pursuance of the order of sale; that before the day of sale the defendant had expressed his willingness to bid $5.50 per acre for the land; that on the day of sale he was not present at the sale; that the petitioner requested one J. M. Beavers to bid that price for the land, and he did so; that the sale so made was reported that no part of the purchase money was paid that day, or at the time of the order confirming the sale; that said Beavers never made any assignments of his bid, and his was the only bid; that on the day of the sale the defendant had notice that he had so bid for the land at the petitioner's request, and that no part of the purchase money had been paid; that about three months after the sale the petitioner notified the defendant that he must pay the purchase money; that an arrangement was then made, in pursuance of which John T. Downs advanced the money, and...