Flemming v. Roberts

• Citation: 84 N.C. 532
• Court: United States State Supreme Court of North Carolina
• Decision Date: 31 January 1881
• Parties: W. W. FLEMMING and others. SMITH, C. J., did not sit on the hearing of this case. v. G. M. ROBERTS and others.

84 N.C. 532

W. W. FLEMMING and others. SMITH, C. J., did not sit on the hearing of this case.

v.

G. M. ROBERTS and others.

Supreme Court of North Carolina.

January Term, 1881.

CIVIL ACTION and MOTION in the cause heard at Fall Term, 1879, of BUNCOMBE Superior Court, before Graves, J.

The two cases between the same parties touching the same subject matter, being treated as one action, were tried together.

One case was an independent action brought by the plaintiffs to impeach a decree of the court of equity rendered in a cause then depending, where the plaintiffs as heirs at law of Samuel Flemming had filed a petition by their guardian, James H. Greenlee, (the petitioners being infants) for the sale of a lot of land in the town of Asheville, alleging that the land had been sold, bonds taken for purchase money, sale reported and confirmed, and a deed made to the purchaser by the clerk and master without any order of the said court authorizing him to make title; that no part of the purchase money has ever been paid, the bonds given by the purchaser had been surrendered, and other bonds taken by the guardian in their stead without authority, and the obligors thereof have become insolvent; and they ask that they may have a lien upon the land to secure the payment of the purchase money and that the land be sold for that purpose and the costs of action.

The other was a petition in the suit in equity, setting forth the facts that a petition had been filed in the court of equity for Buncombe county in the year 1855, by the plaintiffs as heirs at law of Samuel Flemming for the sale of a lot in the town of Asheville; that they were all infants of tender years and brought the suit by their guardian, Jas. H. Greenlee; that the master was ordered to make sale of the lot, and in pursuance thereof the property was sold on the 12th of April, 1856, when James B. Rankin and Robert H. Chapman, junior, became the purchasers at four thousand dollars and gave their notes for the same with Robert Helt Chapman and James A. Patton as sureties; that the master made a report of the sale in due form which was confirmed by decree of court, in which the master was directed not to collect the purchase money until ordered to do so, and to withhold the title until the purchase money was paid; that John and Greenlee Flemming have since died without issue, and Mary Flemming has intermarried with the plaintiff, John Yancey; that the record of said proceedings in the petition for sale has been destroyed by fire, and that the foregoing is a correct statement of said proceedings; that the master has made a deed to said purchasers who afterwards sold and conveyed the premises to George W. Swepson, who conveyed the same to the defendants, that no part of the purchase money has ever been paid, and the master has made the deed without any decree of said court authorizing it; and they ask that the transcript referred to in the record as Exhibit A, of which the foregoing is a correct abstract, may be set up and established as the true record of the proceedings in said cause and that the same be enrolled, and for such other and further relief, &c.

The defendants in their answer admit that the matter contained in the plaintiffs' Exhibit A is a correct transcript of the equity suit, except in the following particulars: They say that it is not true that the master was directed to retain the title until the purchase money was paid in full, nor is it true that he executed the deed to the purchasers without a decree authorizing him to make title. They aver that the report of the master was confirmed without at that time making any decree touching the collection of the purchase money or passing the title to the purchasers, but that at a subsequent term of the court, a proper decree was made to collect the money and make title; that the guardian, Greenlee, wished to lend out the purchase money, which he did to the said Chapman and Rankin, and took their notes for the same with Robert Helt Chapman and James A. Patton as sureties, which note was perfectly good, and that said guardian being a party to the record applied to the court of equity to sanction and confirm said arrangement, and a proper order to that effect was made and the notes given to the master cancelled and surrendered to the purchasers to whom the master was directed and commanded to make title, and that the costs were paid and the whole case passed from the docket and business of the court in the same manner as other completed business; that long after title was made as aforesaid, the purchaser, Chapman, sold the lot to Swepson who paid for the same full value and in good faith without notice of any defect or supposed defect in the record, and afterwards Swepson conveyed it to defendants who bought in good faith at a fair value and without notice of any defect in the record; that the petitioners came of age more than ten years before this proceeding was commenced, and not until it was discovered that by long delay of the guardian in the collection of said notes and by the disastrous result of the war the makers thereof had become insolvent, was any pretence or suggestion made in regard to defects or irregularities in the record of the equity suit.

At spring term, 1873, it was ordered by the court that the case be referred to W. M. Hardy to ascertain and set up the record in this case alleged to be lost, and report to the next term together with the evidence on which the record is founded, and at the ensuing term the referee filed a report setting out the record in said equity suit substantially the same as that proposed to be set up by the plaintiffs in their petition, and on the hearing it appeared to the court that the report was not full enough, and an order was thereupon made that the case be recommitted to the referee to ascertain and report more fully the record alleged to be lost or destroyed with the evidence thereon. In obedience to this order, the referee submitted additional facts and reported that when the notes for the purchase money became due in the year 1859, one Robert Helt Chapman, Junior, who was at that time solvent, at the request of said Greenlee the general guardian of said infant plaintiffs, executed to Greenlee, as guardian, the note for the principal and interest then due on the sale notes with approved security; that the arrangement was made with full knowledge and sanction and under the direction of the said court of equity in which at spring term, 1859, a decree in the cause was made as follows: “This cause coming on to be heard upon the petition, exhibits, former orders, decrees and reports herein, and it being made to appear that the purchase money is now all due, and James H. Greenlee, guardian of the petitioners, representing to the court that it is desirable and to the interest of the infants to keep said purchase money invested in good interest-bearing securities, and the said Robert Chapman, Junior, having tendered to the guardian his bond for the full...