Hughes v. Pritchard

• Decision Date: 06 October 1910
• Citation: Hughes v. Pritchard, 153 N.C. 135, 69 S.E. 3 (N.C. 1910)
• Parties: HUGHES et al. v. PRITCHARD et al.
• Court: North Carolina Supreme Court

69 S.E. 3

153 N.C. 135

HUGHES et al. v. PRITCHARD et al.

Supreme Court of North Carolina

October 6, 1910

Appeal from Superior Court, Camden County; Ferguson, Judge.

Suit by M. E. Hughes, Sr., and others against D. T. Pritchard and others. On motion to set aside a final decree. From an order granting the motion, plaintiffs appeal. Affirmed.

See also, 68 S.E. 906.

This was a motion made in a special proceeding to set aside the final decree theretofore entered. The defendants, other than D. T. Pritchard, moved before the clerk of the superior court of Camden county to set aside and vacate the final decree report of commissioners, and order or partition in the special proceeding for partition, begun in said court on June 9, 1898. Upon the affidavits and records offered before him his honor found the following facts: At Spring term, 1896, of Camden superior court, M. E. Hughes and M. E. Hughes, Jr. commenced action against D. T. Pritchard to recover an undivided two-thirds of that certain tract of land in Camden county, known as the D. L. Pritchard home place, of 500 acres and set up a parol contract and recovered an undivided two-thirds of the said tract of land against the said D. T. Pritchard. That on the 9th day of June, 1898, the said plaintiffs commenced special proceedings before the clerk of the superior court of Camden county for partition of said tract of land, in which these plaintiffs alleged that they were owners of two-thirds interest and D. T. Pritchard the owner of the other one-third, making D. T. Pritchard and all of his children party defendants. That the summons was served upon them by the sheriff of Camden county on D. T. Pritchard and each of the children personally by the sheriff reading the summons to each of them, and by leaving a copy of the summons with D. T. Pritchard, with whom the children resided. That D. T. Pritchard was appointed by the court guardian ad litem for the infant defendants and declined to serve. That on the 23d day of June, 1898, the court appointed M. B. Hughes guardian ad litem of William, John Franklin, George, Judson, Sanborne, Iva, and Florine Pritchard. That summons was issued for M. B. Hughes, guardian ad litem for said defendants, and he accepted service upon the said summons. The said M. B. Hughes, guardian at litem for the infant defendants, filed an answer for them, which is made a part of the findings of this court. That there was no copy of the summons left with either of the infant defendants. It was adjudged by the court that the plaintiffs and D. T. Pritchard owned the said tract of land as tenants in common, and that the plaintiffs own two-thirds and defendant D. T. Pritchard owns one-third thereof. That the commissioners appointed in the order at the time failed to serve and make partition. That in lieu of them was appointed John Jacobs, H. D. Sawyer, and S. R. Edney, who went upon the lands, after being duly sworn by the said sheriff, and made division of said lands, and filed their report with the clerk of the superior court. That the report of the commissioners remained on file from the 30th day of August, 1898, until its hearing on the 21st day of November, 1898. That notice was served on each of the defendants personally, no copy being left with any of the infant defendants, at which time defendants appeared and filed objections to the confirmation of the report. Said objections are made a part of the findings of this court. Objections were overruled. That afterwards counsel was employed and appeared in the name of all the defendants, who gave notice of appeal, and the same was appealed to the superior court at term. The court finds the ages of the infant defendants as set out in the petition for partition of said lands in this cause. Upon the hearing of the appeal before his honor, Judge Coble, he found the facts and filed his judgment, which is made a part of the findings of this court: "Upon the foregoing findings, the court is of the opinion that the infant defendants under 14 years of age were not properly served, and are not bound by the judgment, and that the interests of D. T. Pritchard and the infant defendants were adverse. It is therefore ordered and adjudged by the court upon motion of H. S. Ward and W. A. Worth that the judgment be vacated as to the infant defendants, who at the time of the alleged services, to wit, on the 11th day of June, 1898, were under 14 years of age, and that the plaintiffs pay the cost of these proceedings, to be taxed by the clerk of this court."

It further appears from the petition filed on June 13, 1898, that the plaintiffs, as petitioners, alleged that the plaintiffs and defendant D. T. Pritchard were tenants in common of the land described therein, the plaintiffs owning two undivided thirds and the said D. T. Pritchard owning one undivided third; that the land was capable of actual partition; that the plaintiffs desire to have their said part set apart to them in severalty; that Mary E. Hughes, Sr., owns a life estate in the two-thirds part and Mary E. Hughes, Jr., owns the remainder in fee of the two-thirds part; that the defendant Alice is the wife of D. T. Pritchard, and the other defendants (11 in number) are their children, and heirs at law of D. T. Pritchard. Of these, four, whose names are given, were over 21 years of age, three under 21, but over 14, and four under 14 years of age. The summons was served upon the defendant, as appears by the return of the sheriff, in the manner found by his honor. Prior to the institution of the special proceedings, the plaintiffs had brought suit and it had been ended by a final judgment (122 N.C. 59, 29 S.E. 93), establishing their equitable title to a two-thirds interest in the land sought to be partitioned. D. T. Pritchard was the owner of the legal title, but these plaintiffs in that action attached to it a parol trust in their favor for a two-thirds interest. D. T. Pritchard was the sole defendant to that action. They also recovered a judgment against him for something over $1,000 for rents received by him and held for plaintiffs. The infant defendants in the special proceeding claim that their father is the holder of the legal title in trust for them, and that the plaintiffs were fixed with notice of their equitable title, because in the very action in which they established their equitable title the witnesses of the plaintiffs testified to the terms of the trust, upon which D. T. Pritchard held the legal title, to wit, two-thirds for the plaintiffs and one-third for the children of D. T. Pritchard. Upon the foregoing facts, his honor granted the motion of such of the defendants as were on June 11, 1898, under 14 years of age, and denied it as to the other defendants. From the judgment of his honor the plaintiffs appealed to this court.

Pruden & Pruden, J. C. B. Ehringhaus, and E. F. Aydlett, for appellants.

W. A. Worth and H. S. Ward, for appellees.

MANNING J.

In the consideration of the question presented by this appeal neither the rights of a stranger to the proceeding nor the rights of a purchaser for value without notice are involved. The only parties interested are the original parties to the special proceedings. After the final judgment in the special proceeding was entered, the plaintiffs had execution to issue on their money judgment recovered in the previous action against D. T. Pritchard, and, after having his homestead allotted in the part allotted to him in the special proceedings, purchased the excess at a nominal sum at execution sale, and took deed therefor. They claim now under that deed. The record of the special proceedings presents some unusual features. While D. T. Pritchard, his wife, and all his children are made parties defendant, infants and adults, it is distinctly alleged that the only tenants in common of the land described in the petition are the plaintiffs, owning a two-thirds interest, and the defendant D. T. Pritchard, owning a one-third interest. The only ground even suggested in the petition why the children of D. T. Pritchard are proper parties is that they are the "heirs at law" of their living father. No relief is asked as to them. No estate, legal or equitable, in fee or for life, present or contingent, is alleged to be theirs, but it is particularly stated in the petition that the defendant D. T. Pritchard is the owner of the other one-third interest. There are other irrgularities in the proceedings. The summons for the guardian ad litem was issued on June 23, 1898, returnable June 28th. Service accepted on June 24, 1898. The answer filed by him is verified June 20, 1898. The order of the court directing partition in the proportions stated in the petition is made June 28th. Having received notice of the equitable estate of the infants in the action brought by the plaintiffs to establish their own equitable title, it is not difficult to discover the purpose that prompted them to make these infants party defendants, and to now insist that, having been parties, though with no allegation of any interest in the subject-matter of the litigation, they are concluded by the judgment because they were parties to the record. Within 10 days after the final order confirming the petition, the plaintiffs caused execution to be issued on their money judgment against D. T. Pritchard and purchased for a small sum the excess over the homestead at the execution sale, as before stated, and assert title thereto under the deed made to them by the sheriff. Unless constrained to do so by well-settled principles of law approved by the decisions of this court, we are unwilling to sanction the method pursued and to consummate by our decision the apparent wrong to these infants, for to do so would be, first, to bind them and then to take from them...