Graham v. Floyd
| Citation | 197 S.E. 873,214 N.C. 77 |
| Decision Date | 22 June 1938 |
| Docket Number | 684. |
| Parties | GRAHAM v. FLOYD et al. |
| Court | United States State Supreme Court of North Carolina |
Appeal from Superior Court, Robeson County; Marshall T. Spears Judge.
Action by Annie Ruth Surles Graham against O. I. Floyd and others to recover land and remove cloud on title thereto. From a judgment as of nonsuit, plaintiff appeals.
Reversed.
A judgment, approving superior court clerk's order confirming commissioner's sale of decedent's realty to wife of decedent's infant child's guardian ad litem, who asserted claim against estate, is not void, but voidable, and may be vacated for irregularities in proceeding for authorization of sale, unless persons to whom such spouses subsequently conveyed land were innocent purchasers. C.S. §§ 74, 86.
A purchaser of land for value without notice of fraud, by which deed to vendor was procured, gets good title.
Civil action for recovery of land and to remove cloud on title thereto, and for damages.
Plaintiff alleges and offers evidence tending to show that Ila Surles died on August 28, 1915, intestate, and seized of a certain tract of land in Robeson County containing 19 1/2 acres, more or less, and leaving surviving her husband, E. H. Surles, and the plaintiff, who was then an infant; that on October 16 1915, E. H. Surles was appointed and qualified as Administrator of the estate of Ila Surles, and filed bond as such Administrator with the defendant O. I. Floyd, and W Lennon as sureties; that on October 23, 1915, a special proceeding entitled E. H. Surles, Administrator of Ila Surles, deceased, vs. Annie Ruth Surles was instituted in the Superior Court of Robeson County, to sell lands to make assets to pay debts of the estate; that on the same day defendant, O. I. Floyd, was appointed as Guardian ad litem for Annie Ruth Surles; that on October 25, 1915, by reading same to her, and by leaving copy with Mrs. Jane Butt, with whom she resided, summons was served on Annie Ruth Surles, and service of summons accepted by O. I. Floyd as Guardian ad litem; that on October 29, 1915, petition was filed, in which it is alleged that the debts listed in the petition consisted of three notes dated October 27, 1914, aggregating $228.40, alleged to be due O. I. Floyd; the personal property is insufficient to pay debts of the estate and costs of administration; the land is "valued at about $500"; and E. H. Surles, husband, and Annie Ruth Surles are heirs at law of Ila Surles; that O. I. Floyd as Guardian ad litem on October 29, 1915, filed answer admitting all the allegations of the petition; that on November 9, 1915, the Clerk of the Superior Court, finding that the personal estate is insufficient to pay debts of estate, and that "it is for the best interest of all parties," ordered the lands in question to be sold at private sale, and appointed Woodberry Lennon as Commissioner to make the sale; that on the same day the Commissioner reported that on November 8, 1915, he sold the lands to one L. P. Floyd for $500 cash, which he considered fair and reasonable and recommended that the sale be confirmed and deed made to the purchaser; that on the same day, without any proof as to the adequacy of the purchase price, the sale was confirmed by the Clerk of the Superior Court, who ordered deed executed and delivered to the purchaser upon payment of the purchase price, which order was approved by the Judge of the Superior Court "presiding" in the Ninth Judicial District; that the Commissioner executed a deed to L. P. Floyd, dated November 8, 1915; that on September 30, 1918, defendant O. I. Floyd and wife, Lydia P. Floyd, who is the L. P. Floyd to whom the deed was made, conveyed the land in question, with other land, to Cheston Branch and wife for the recited consideration of $2,000; that the plaintiff, Annie Ruth Surles Graham, was born on June 25, 1913; that she became twenty one years of age on June 25, 1934; that this action was instituted June 16, 1937; that the land in question was reasonably worth the sum of $200 per acre in 1915.
Plaintiff further alleges that the original papers in the said special proceedings tend to show that the answer of O. I. Floyd, as Guardian ad litem, was prepared by the same attorney who prepared the petition; and that in the report of the Commissioner and in the decree of confirmation the name of O. I. Floyd was typed and that the initials were erased and inserted in lieu thereof. For inspection and in support of these allegations plaintiff introduced in evidence the original unregistered judgment roll in said special proceeding.
Plaintiff alleges and contends that on the face of the petition O. I. Floyd appeared as the only creditor of her mother's estate; that as Guardian ad litem he admitted the debt, became the purchaser of the land, and had title taken in the name of his wife, L. P. Floyd; and that by reason of these matters the proceeding is a fraud upon the right of the plaintiff, and void; and that the defendant, Branch, purchased with notice.
Plaintiff further alleges and contends that, if the defendants Branch are purchasers for value without notice, she is entitled by reason of the fraud of defendants Floyd to recover of them the value of the lands.
Defendants deny material allegations, and plead the 3-year statute of limitations, C.S. § 441.
From judgment as of nonsuit at the close of plaintiff's evidence, the plaintiff appealed to the Supreme Court, and assigns error.
Caswell P. Britt and F. D. Hackett, Jr., both of Lumberton, for appellant.
Johnson & Floyd, of Lumberton, for appellees Floyd.
Robt. E. Lee and W. Osborne Lee, both of Lumberton, for appellees Branch.
The plaintiff challenges the correctness of the judgment as of nonsuit. We think the challenge good.
When the personal estate of a decedent is insufficient to pay his debts and charges of the administration, the Administrator may, at any time after the granting of letters, apply to the Superior Court for authority to sell the real estate to create assets with which to pay the debts. C.S. § 74. "If it be made to appear to the court by petition and by satisfactory proof that it will be more for the interest of said estate to sell such real estate by private sale" the court may authorize such sale. C.S. § 86.
The heirs of the decedent are necessary parties to the proceeding. In such proceeding if any of the defendants are infants under 14 years of age, summons shall be served as provided in C.S. § 483 (2). They must defend by their general or testamentary guardian, if they have any within the State. If they have no such guardian, and have been summoned, the court in which the special proceeding is pending, upon motion of any of the parties, may appoint some discreet person to act as guardian ad litem to defend in behalf of such infants. After twenty days' notice of the summons and complaint in the special proceeding and after answer is filed by the guardian ad litem, the court may proceed to sign judgment. C.S. § 451; Moore v. Gidney, 75 N.C. 34; Young v. Young, 91 N.C. 359; Welch v. Welch, 194 N.C. 633, 140 S.E. 436. The guardian ad litem shall file answer. C.S. § 453. It is the duty of the guardian ad litem to protect the interest of the infant.
In Ellis v. Massenburg, 126 N.C. 129, 35 S.E. 240, it is said:
"The court has no higher duty than the protection of infant defendants, and there can be no trust more sacred than that of a guardian, who must be absolutely free from any interest or motive that can possibly interfere with the faithful performance of his duties. If he has any interest at all in the suit, it must be thoroughly consistent with that of his wards. Even his attorney must be equally disinterested, and a mere colorable interest is a sufficient disqualification for either, if at all adverse. * * * We think that this rule is analogous to that forbidding a trustee to deal with himself, which, founded upon natural justice and public policy had become too firmly imbedded in our jurisprudence by repeated decisions to need citation of authorities.
We may say here that the object of the appointment of a guardian ad litem is to protect the interest of the infant defendant, to which protection he is entitled at every stage of the proceeding." Covington v. Covington, 73 N.C. 168; Holt v. Ziglar, 159 N.C. 272, 74 S.E. 813; Morris v. Gentry, 89 N.C. 248.
The defendant, O. I. Floyd, asserting a claim against the estate, was disqualified to act as guardian ad litem. But, assuming to act, it was his duty to be faithful to the trust throughout the entire proceeding. He was in no position to buy at the Commissioner's sale, either directly or indirectly. If he bought at the sale, he became constructively trustee for his ward. If he stood by and permitted his wife to buy the land at a price greatly less than its real value, this would be evidence for consideration by the jury in passing on the issue of fraud.
In Patton v. Thompson, 55 N.C. 285, it is aptly said: There the guardian bought at judicial sale. The court declared that he held the property in trust.
In Froneberger v. Lewis,...
To continue reading
Request your trial