Fowler v. Poor

• Decision Date: 31 October 1885
• Citation: Fowler v. Poor , 93 N.C. 466 (N.C. 1885)
• Court: North Carolina Supreme Court
• Parties: ALICE FOWLER et als v. W. P. POOR et als.

93 N.C. 466

ALICE FOWLER et als

v.W. P. POOR et als.

Supreme Court of North Carolina.

October Term, 1885.

CIVIL ACTION tried before Graves, Judge, at Spring Term, 1884, of the Superior Court of TRANSYLVANIA county.

The plaintiffs are the children and heirs-at-law of P. S. Morgan, who died about the year 1862, and at the time of their father's death, they were all infants of tender years.

The parts of the case settled upon appeal material to a proper understanding of the opinion of the Court, are as follows:

“It appears from the records of the Superior Court of Transylvania county, that at the Spring Term, 1869, of said court, W. P. Poor, administrator of P. S. Morgan, by his attorneys, Coleman & Duckworth, filed his petition for the sale of certain lands therein described, which are admitted to be the lands described in the complaint, which petition appears to be in proper form; that a summons issued the 27th of July, 1869, returnable to the Fall Term, 1869, of said Court, notifying the heirs of said P. S. Morgan, designating them each by his proper name, and on the back of said summons was endorsed, Executed. R. Hamilton, sheriff.”

That at the Fall Term, 1869, the following entry appears:

W. P. Poor, administrator of P. S. Morgan, dec'd, ex parte, petition for sale of land: order of sale granted.

That the report of sale showed that the land was sold to W. B. Duckworth on the 6th of August, 1870.

That at Fall Term, 1870, the records show the following entry:

+------------------------------------+
                ¦W. P. POOR, Administrator of P. S.¦)¦
                +----------------------------------+-¦
                ¦MORGAN, dec'd,                    ¦)¦
                +----------------------------------+-¦
                ¦vs                                ¦)¦
                +----------------------------------+-¦
                ¦The heirs-at-law of P. S. MORGAN, ¦)¦
                +----------------------------------+-¦
                ¦MARCUS MORGAN, MANN MORGAN,       ¦)¦
                +----------------------------------+-¦
                ¦GEO. B. MORGAN, ALICE MORGAN.     ¦)¦
                +------------------------------------+
                

It appearing to the Court that the defendants are without guardian, Archibald Aiken, is appointed by the Court guardian ad litem of the said infants to defend this suit. The said A. Aiken, guardian, appears by his attorney, W. B. Duckworth, Esq., and has himself made a party defendant to this suit, accepting service of process, and consents to the decree and all the proceedings had in this action. Leave is given, on his application, to the said guardian, to file an answer for himself and the said infants as of Fall Term, 1869. And at the same term, to-wit, Fall Term, 1870, the following order was made:

+------------------------------------+
                ¦W. P. POOR, Administrator of P. S.¦)¦
                +----------------------------------+-¦
                ¦MORGAN, dec'd,                    ¦)¦
                +----------------------------------+-¦
                ¦vs.                               ¦)¦
                +----------------------------------+-¦
                ¦The heirs-at-law of the said P. S.¦)¦
                +----------------------------------+-¦
                ¦MORGAN.                           ¦)¦
                +------------------------------------+
                

“This cause coming on for further directions, and it appearing that W. P. Poor, administrator of P. S. Morgan, dec'd, on the 6th day of August, 1870, sold the land described in the petition to W. B. Duckworth, at the price of eleven dollars, and the said sale appearing to be just and reasonable, it is therefore ordered and decreed that the said sale be confirmed, and that the said administrator proceed to collect the amount when it becomes due, and that he apply a sufficiency of the proceeds thereof to the payment of such debts and charges of administration as the personal estate may have been insufficient to discharge, after first deducting the costs of this suit. If any surplus shall remain in his hands after the payment of said debts and charges, the same is to be considered as real estate, and is to be disposed of by said administrator, among such persons as would have been entitled to the land itself according to law. It is further ordered that upon the payment of the whole of the purchase money, the said W. P. Poor, administrator, as aforesaid, is to execute a deed to the purchaser of said land.”

The said Court began on the 10th day of October, 1870.

It is admitted that W. B. Duckworth, the purchaser at the administrator's sale, is the same person whose name appears to the petition as one of the attorneys of W. P. Poor, administrator of P. S. Morgan.

It is further declared that the proceedings for the allotment of dower to Margaret Morgan, widow of P. S. Morgan, are in all respects regular.

It is further found as a fact admitted by the plaintiffs, that the said Margaret Morgan has by deed duly executed, dated ........ ,?? conveyed her dower right to the said W. B. Dnckworth.

It is further declared that on the ... day of ...... , W. B. Duckworth executed a deed to Joseph Duckworth, conveying the land described in the complaint.

And the jury having been impanelled, found in response to the issues submitted to them:

1st. That value of the lands at the time of the sale to W. B. Duckworth, subject to the encumbrance of the widow's dower, was two hundred and fifty dollars.

2nd. That the rental value of the whole land, including the dower, was twenty-five dollars per annum.

3rd. That rental value of the land, exclusive of the dower allotted to the widow, was four dollars per annum.

4th. That the deed to the said W. B. Duckworth was not obtained by fraud on the part of the said W. B. Duckworth.

5th. That Joseph Duckworth did not have actual notice of any fraud in the deed to W. B. Duckworth.

6th. That value of all the land, including the widow's dower, was, at the time of the sale to W. B. Duckworth, six hundred dollars.

Thereupon, it was adjudged that the order of sale, and the sale thereunder, and the deed from...