Harrison v. Harrison

• Decision Date: 28 April 1890
• Citation: 106 N.C. 282,11 S.E. 356
• Court: North Carolina Supreme Court
• Parties: Harrison. v. Harrison et al.

11 S.E. 356

106 N.C. 282

Harrison.

v.Harrison et al.

Supreme Court of North Carolina.

April 28, 1890.

Sale of Land by Executor—Infants — Ratification.

1. On motion to set aside an order authorizing an administrator to sell real estate, and annul the proceedings thereunder, it appeared that no guardian ad litem was appointed for the infant defendants, nor were they represented in any way; that no service was made on any of the defendants except one, as to whom service was made by publication; and that the sale was made and confirmed without notice to defendants. Held, that the sale was void under Code N. C. § 1488, which provides that "no order to sell real estate shall be granted till the heirs or devisees of the decedent have been made parties to the proceeding by service of summons." Following Perry v. Adams, 3 S. E. Rep. 729.

2. Code N. C. § 387, providing that judgments in all civil actions and special proceedings pending on March 14, 1879, or theretofore determined, wherein any or all of the defendants were infants on whom no " personal service " of summons was made, shall be valid, has no application to a judgment recovered in a proceeding in which there was no service upon the infant, or any other person in his behalf. Following Perry v. Adams, 3 S. E. Rep. 729.

3. The fact that infant defendants had notice of a proceeding to sell testator's land by means of a petition for dower filed by their mother, and made no motion to set the sale aside for several years, is not a ratification of the sale, when they have taken no benefit under the proceedings.

Appeal from superior court, Granville county; J. F. Graves, Judge.

Code N.C. § 387, provides that In all civil actions and special proceedings pending on March 14, 1879, or theretofore determined, in any of the courts, wherein any or all of the defendants were infants on whom there was no "personal service" of summons, the proceedings and judgments shall be valid.

A. W. Graham, R. W. Winston, and E. C. Smith, for appellants.

J. B. Bachelor and John Devereux, Jr., for appellee.

Shepherd, J. The co-executor, George Harrison, was removed without notice, and L. A. Paschal appointed administrator with the will annexed. This administrator, in October, 1870, filed a petition against Nancy E. Harrison, the widow of the testator, and the other defendants, his devisees, to sell certain real estate forassets. No service of any kind was made upon any of the defendants except George Harrison, as to whom there was service by publication. No guardian ad litem was appointed for the infant defendants, nor were they in any way represented. On the 3d of December, 1870, an order was made directing a sale upon 30 days notice. The administrator sold the land on the 5th of December, and the sale was confirmed on the 19th of the said month. The land brought only one-third of its value. The defendants had no notice of the time and place of the sale, nor of the order of confirmation.

The simple recital of these facts shows such an utter disregard of the rights of property, and of the fundamental principles of law by which these rights are protected, that it is difficult to realize that such proceedings could have been had in a court invested with such important jurisdiction. As the interest of the widow ceased at her death, in 1887, this motion to set aside the order of sale, and the proceedings thereunder, is made by all of the remaining defendants except George Harrison. We cannot hesitate to affirm the judgment of his honor declaring the proceedings void. However anxious this court lias been to uphold irregular orders and decrees in favor of innocent purchasers, we can find no decisions which authorize...