Gilbert v. James

• Decision Date: 28 February 1882
• Citation: 86 N.C. 244
• Court: North Carolina Supreme Court
• Parties: J. F. GILBERT and others v. WILLIAM G. JAMES.

86 N.C. 244

J. F. GILBERT and others

v.WILLIAM G. JAMES.

Supreme Court of North Carolina.

February Term, 1882.

CIVIL ACTION tried at Fall Term, 1881, of ALEXANDER Superior Court, before Seymour, J.

Solomon Martin died intestate in 1862, owning the tract of land described in the complaint, leaving a widow, Rebecca, and four children, Nancy, wife of G. C. Meadows, of full age, and Abraham, Franklin and Mary, infants, to whom, as heirs at law and subject to dower, the said land descended. Franklin left the state in 1872, and never since being heard from is supposed to be dead.

On March 23d, 1871, Meadows and wife and Abraham Martin conveyed their respective shares, constituting an undivided moiety to the defendant William G. James, and he caused a petition to be filed in the probate court, employing John A. Stephenson, a practicing attorney, for that purpose, in the names of himself and the tenants, Franklin and Mary, represented by their mother, appointed guardian ad litem, for partition and sale.

The petition itself (verified by one James F. Stephenson, whose relations to the cause do not appear, and sustained by his affidavit and that of one Abraham Mayberry, the latter having been taken sometime afterwards) was granted by the probate judge, and a decree entered directing a sale of the premises and appointing the said attorney commissioner to conduct it. These proceedings all transpired on the same day, to-wit, on March 23d, when the defendant acquired his title. The land was sold to the defendant, on a credit of six months at the price of $725 and he executed his note with surety for that sum. The commissioner's report was confirmed on August 23d, and he was ordered to proceed to collect the purchase money when due, and when paid, to make title to the defendant.

The order of sale, the report of the commissioner, and the final decree of confirmation and for title were severally presented to the judge of the district and approved by him. The commissioner collected the moiety of the purchase money due the infant petitioners, and leaving the residue in the hands of the defendant, on November 10th conveyed the land to him. The fund collected by the commissioner was deposited in the Bank of Statesville and has been lost.

The present action, instituted by the plaintiffs, (children and grand children of the intestate, Solomon) seeks to impeach the decrees and the proceedings connected therewith, for fraud practiced by the defendant, in order to secure title to himself; and they allege that the names of the two infant tenants, as also that of their mother, as guardian ad litem, were used without the knowledge or consent of either, and with no lawful authority from any source, as were all the proceedings in the cause--hurried to a conclusion through the agency of the attorney acting in behalf of the defendant, and by a sale at a price below the value of the land; and they ask that the recited decrees, thus obtained through the falsehood and fraud of the defendant, may be set aside and annulled and his pretended conveyance of title be declared void, and for general relief.

The defendant does not controvert the plaintiffs' allegations of matter appearing of record in the suit for partition and sale, but he avers that the mother had full knowledge of what was done and made no objection thereto, nor to the sale at which she was present, and denies the imputed fraud, and any wrong intended or done to his associate petitioners in any respect. In an amendment to his answer the deheirs under her from setting up title to the share descended from their uncle Franklin, and that the same if any vests in him under that conveyance.

The matters in controversy were submitted to the jury and their findings are for the plaintiffs. From the judgment thereon the defendant appeals.

Mr. D. M. Furches, for plaintiffs .

Messrs. Robbins & Long, for defendant .

SMITH, C. J., after stating the foregoing facts.

With this succinct narrative of facts, and of the action of the court, we proceed to consider and dispose of the exceptions shown in the record.

1. The defendant proposed to prove by a witness that the deceased attorney, J. A. Stephenson, in his life-time asked witness to become guardian to the infants, Franklin and Mary, and receive their share of the proceeds of sale, and that in the conversation he stated he was their attorney. This evidence, on objection, was rejected for incompetency. The declaration, as evidence of an antecedent professional employment in a cause then in progress, cannot be defended, as accompanying and explaining an act, for an agent's declarations are not admissible to prove his authority. The agency must be first shown aliunde, before the declarations can be received to affect an alleged principal. Williams v. Williams, 6 Ired., 281; Grandy v. Ferebee, 68 N. C., 356; Francis v. Edwards, 77 N. C., 271. These tenants were then respectively of the age of 17 and 14 years, and had no legal capacity to contract or constitute an agent for the disposition of their property, and it was not proposed to prove employment by the mother on their behalf, acting as guardian ad litem.

The excluded evidence is but mere hear-say, and is not admissible as part of the res gestæ. 1 Greenl. Ev., §§ 109, 110. Roberts v. Roberts, 82 N. C., 29.

Besides, the record shows and the defendant testifies to the fact that the attorney did, in filing the petition, act for all the parties, and the excluded evidence goes no further, for it does not profess to show the authority for representing the infant owners, but only that he was the attorney for them, a matter not in dispute. No harm could, therefore, come from the exclusion.

2. The second exception is to the refusal of the court to permit proof of the good...