Froneberger v. Lewis

• Decision Date: 31 January 1874
• Citation: 70 N.C. 456
• Court: North Carolina Supreme Court
• Parties: J. FRONEBERGER, Adm'r. v. JOHN G. LEWIS, Adm'r.

70 N.C. 456

J. FRONEBERGER, Adm'r.

v.JOHN G. LEWIS, Adm'r.

Supreme Court of North Carolina.

January Term, 1874.

It is against the policy of the law to allow an Administrator to buy at his own sale. And when he does so, those interested have their election to treat the sale as a nullity and set it aside, or to let the sale stand and demand a full price.

When the Judge below does not find the facts upon which he overruled the defendant's exceptions, and the defendant not having requested him to find such facts, this Court will remand the case that the facts may be found either by his Honor, or in a case under the Code.

( Ryden v. Jones, 1 Hawks, cited and approved.)

CIVIL ACTION, tried at Fall Term, 1873, of Gaston Superior Court, before his Honor, Judge Logan.

The facts necessary to an understanding of the points decided in this Court, are fully set out in the opinion of Justice READE.

Upon the return of the report of the referee both plaintiff and defendant excepted to the same. And from the judgment of the Court overruling certain of his exceptions, the defendant appealed.

Schenck, for appellant .

J. H. Wilson and M. A. Moore, contra .

READE, J.

The defendant appealed from the order overruling his own exceptions and from the order allowing one of the exceptions of the plaintiff. We will first consider the order allowing the plaintiff's exception.

As preliminary we remark, that the finding of the facts by his Honor are conclusive upon us. We cannot review him. We review only his legal inferences.

The facts as to the plaintiff's exception are, that the defendant, as administrator, obtained license from the proper Court to sell the real estate of his intestate to pay debts, and that at the sale he bought the land for $705, which was worth $2,000.

It is against the policy of the law to allow an administrator to buy at his own sale. And when he does so, those interested have their election to treat the sale as a nullity--in this case to have the sale set aside and a new sale ordered--or to let the sale stand, and demand a full price. Ryden v. Jones, 1 Hawks, 497. The latter course was pursued here. We agree with his Honor in allowing the plaintiff's exception.

There were seven exceptions filed by the defendants, involving both facts and law. His Honor overruled the exceptions; but found no facts which enables us to see whether he decided the law right or wrong. If he had stated the facts upon which he overruled each of the defendant's exceptions, plainly and briefly, as he did the facts upon which he allowed the plaintiff's exception, we would have no difficulty. But this is not done.

Upon the announcement of his Honor's decision overruling the defendant's exceptions, if the defendant desired the facts to be found by his Honor, he ought to have said so; and then, if his Honor had refused to find and...