England v. Garner

• Citation: 86 N.C. 366
• Court: North Carolina Supreme Court
• Decision Date: 28 February 1882
• Parties: J. L. G. ENGLAND and others v. EDMUND GARNER and others.

86 N.C. 366

J. L. G. ENGLAND and others

v.EDMUND GARNER and others.

Supreme Court of North Carolina.

February Term, 1882.

CIVIL ACTION tried at Spring Term, 1882, of MOORE Superior Court, before Shipp, J.

The defendants appealed.

Mr. John Manning, for plaintiffs .

Messrs. Hinsdale & Devereux, for defendants .

SMITH, C. J.

The facts set out in the complaint and admitted by the demurrer are these:

James W. England, who removed from this state in 1836 to Alabama, died in 1849 intestate, seized of an estate in fee in the three several tracts of land described therein and situated in Moore county, which descended to his five children and heirs at law, to-wit: Thomas H. England, Mary E., who intermarried with A. Hutchison; Cornelia, successively the wife of one Evans, and upon his death, of J. W. Crawford; Julia, who married C. C. Curtis, and J. L. G. England, born after his father's change of residence. In the court of equity of Moore, at spring term, 1860, a petition for partition and sale of the lands was filed in the names of the said Thomas H. England, who died in 1864 intestate and without issue, James L. G. England, A. Hutchison, who died in 1865, and Mary E., his wife, J. W. Crawford and wife Cornelia, both since deceased, the latter having died in 1860, leaving the plaintiff J. W. Evans, her son and only heir at law, and C. C. Curtis and wife Julia, who died in 1874, leaving two children, the plaintiffs M. E. Curtis and A. B. Curtis. A decree granting the prayer of the petitioners was rendered at the same term, pursuant to which the lands were sold by the clerk and master and subsequently conveyed to the several purchasers and for the sums following:

1. The tract of 550 acres, for $366, to H. D. McNeill.

2. The tract of 118 acres, for $430, to Edmund Garner.

3. The tract of 200 acres for $200, to N. R. Brady, the two last named being defendants in the action.

At fall term, 1861, the commissioner was directed to collect and pay over the purchase money to the heirs. The cause remained on the docket, so far as appears, without further action until the fall of 1867, when a rule issued against the several purchasers requiring each to pay into the office the sum due by him. They severally appeared and answered the rule, and for cause shown it was discharged as to Garner and Brady at spring term, 1868, and as to McNeill at fall term, 1871, since which time the cause has been retired and, as was held when the case was before us at January term, 1881, on a motion for relief, the proceeding then came to an end. See 84 N. C., 212. McNeill has sold the tract bought by him to the defendant Brady. It is charged that the defendants are committing waste upon their several tracts, and are insolvent.

These are the material facts averred in the complaint and necessary to its being properly understood.

The plaintiffs, in whom vests the title to the lands, if the proceedings in the court of equity and the subsequent deeds shall be declared inoperative and void, assert that the suit for the sale and partition was instituted and prosecuted without authority from the persons who were then owners and tenants in common, and without the knowledge or consent of any of them, or of the present plaintiffs who succeed to their ancestors' estates, and that their first information of what had been done was derived through one Martindale, who communicated to them the matters which appear of record in the said court, in the year 1874, and that none of the interested parties were aware of the use of their names or gave any assent thereto, unless perhaps the said J. W. Crawford, and he gave no information thereof to the others. The plaintiffs further declare that no part of the purchase money has been received by any of the tenants.

The object of the present action is to impeach and annul the several decrees made in the court of...