Dickens v. Long

• Decision Date: 14 March 1893
• Citation: 17 S.E. 150,112 N.C. 311
• Court: North Carolina Supreme Court
• Parties: DICKENS et al. v. LONG et al.

17 S.E. 150

112 N.C. 311

DICKENS et al.

v.LONG et al.

Supreme Court of North Carolina.

March 14, 1893.

Sale op Decedent's Land to Pay Debts—Collateral Attack by Minor Heirs—Failure to Allow Homestead Exemption.

Minor children of a deceased person, who were made parties to a proceeding for the sale of land to pay debts of deceased, and failed at that time to claim any homestead rights in the land, cannot, after coming of age, bring an action against the grantees of an innocent purchaser under a decree of sale rendered in such proceeding to set aside the sale and recover possession of the land, on the ground that it constituted the homestead of the deceased, and hence, under Const. art. 10, § 3, was exempt from payment of debts "during the minority of the children, or any one of them."

Appeal from superior court, Person county; H. G. Connor, Judge.

Action by Ellen Dickens and others against J. A. Long and others to set aside an administrator's sale of certain land claimed to be exempt as a homestead, and to recover possession. From a judgment for plaintiffs, defendants appeal. Reversed.

For report of decision on a former appeal, see 13 S. E. Rep. 841.

J. W. Graham and Merritt & Bryant, for appellants.

W. W. Kitchin, for appellees.

AVERY, J. When this case was brought before us upon appeal from the rulings of the court in the course of a trial, (109 N. C. 165, 13 S. E. Rep. 841,) it was held that the action, in the then existing state of the pleadings, could not be maintained by the other plaintiffs, but that as Isabella Edwards and her husband, Hal Edwards, were not concluded by the judgment in the special proceeding, she was entitled to be let into possession as a tenant in common, if it should be found that she was an heir at law of Man-gum Bamett, as was alleged on the one side, and denied on the other, and had not aliened her interest. After amending their complaint so as to allege that none of the debts for which the administrator of said Barnett was licensed to sell were contracted before 1868, or were of such a nature that the homestead of the decedent or his children could be subjected for their satisfaction, the plaintiffs Isabella Edwards and her said husband entered a non pres., and the action is now avowedly prosecuted upon the theory that the extrinsic allegations as to the character of the debts owing by Barnett give the plaintiffs a status in court, and, upon proof of their truth, entitle them to recover, on the ground that they have thus collaterally shown the judgment In the special proceeding to have been void ab Initio. By the withdrawal of Isabella Edwards as a plaintiff, counsel have emphasized their purpose to rest their right to recover exclusively on this position.

The former appeal (109 N. C. 165, 13 S. E. Rep. 841) was from a ruling of the judge below that, upon the pleadings and testimony offered before the jury, the plaintiffs were not entitled to recover. The plaintiffs submitted to a judgment of nonsuit, and upon a review in this court a new trial was granted, and the plaintiffs were allowed to amend their complaint

The view obviously entertained by the judge below on the former trial was that whether the action were then treated as a direct proceeding to vacate the decree for sale, as preliminary to a demand for possession in the same suit, or simply as an action for possession, in which the plaintiffs set forth in advance specific averments as to title for the purpose of showing that the defendants claimed title from the same source, and that the conveyance through which they deraigned title was void, in either event they had failed, both by allegation and proof, to make a prima facie case. Counsel contended on the former appeal that the original complaint set forth all of the impeaching facts, upon proof of which the court could in one action vacate the decree, and give judgment for a writ of possession. Eliminating the questionas to the rights of Isabella Edwards, which | Is no longer involved, the court here sustained | the ruling below, assigning as a reason, among others, for so holding, that even where a plaintiff relied upon a sale under execution and a sheriff's deed in deraigning his title, if, upon an exhibition of the judgment, execution, and levy, it did not appear...