Covington v. Ingram

• Decision Date: 31 January 1870
• Citation: 64 N.C. 123
• Court: North Carolina Supreme Court
• Parties: E. A COVINGTON and another v. BENJAMIN INGRAM.

64 N.C. 123

E. A COVINGTON and another

v.BENJAMIN INGRAM.

Supreme Court of North Carolina.

January Term, 1870.

*1 Final decrees in the late Courts of Equity, can be impeached at present only by actions, commenced, as others, by summons.

( Royers v. Holt, Phil. Eq. 108; Emerson v. Mallett, Ib. 234, cited and approved; Barnes v. Morris, 4 Ire. Eq. 22, cited, distinguished and approved.)

MOTION to dismiss a rule theretofore obtained, made before Buxton, J., at Fall Term 1869 of ANSON Court.

The facts were that at Fall Term 1859 of Anson Court of Equity, upon the petition of the plaintiffs and others, certain lands had been ordered to be sold, for partition; at Spring Term 1861, the Master reported that he had made the sale, and his report was confirmed: At Fall Term 1861, an order was made to collect the bonds given for the purchase money: In May 1863, the defendant, Ingram, who had purchased one of the tracts, paid the price to the Master, in Confederate money, and, thereupon, at Fall Term 1863, a decree was made, reciting that the purchase money had been paid, and ordering, that the lands be conveyed by the Master to the purchasers, “to-wit: the Mount Pleasant land to Benjamin Ingram the purchaser, in fee simple, &c.”--that the costs be paid, that a distribution of the residue of the money be made among the petitioners, and that the decree be enrolled.

This was accordingly done, excepting that the plaintiffs received no part of the shares due to them.

Before Spring Term 1869 of Anson Court, notice in writing, entitled as being in the petition filed in 1859 for partition and sale, was given by the plaintiffs to the defendant, that at the next term they wonld apply for a rule upon him, to show cause why the proceedings in regard to the alleged payment by him of the money for the Mount Pleasant land, and the deed for such land to him, should not be set aside, and an order made requiring him to pay the difference between the price bid by him for the land, and the real value of the depreciated money which he had paid to the Master. The matter was continued at Spring Term. At Fall Term, after argument upon both sides, the rule was granted. Subsequently the defendant moved to dismiss the rule, upon the ground that the relief which was asked for, could be had only by an action commenced by summons.

This motion having been overruled, the defendant appealed.

Blackmer & McCorkle, and Phillips & Merrimon, for the appellant .

Ashe, and Battle &...