Johnson v. Whilden

• Decision Date: 01 June 1914
• Docket Number: 645.
• Citation: 81 S.E. 1057,166 N.C. 104
• Parties: JOHNSON ET AL. v. WHILDEN.
• Court: North Carolina Supreme Court

81 S.E. 1057

166 N.C. 104

JOHNSON ET AL. v. WHILDEN.

No. 645.

Supreme Court of North Carolina

June 1, 1914

Appeal from Superior Court, Graham County; Carter, Judge.

Action by Fred S. Johnson, as trustee, and others against H. B Whilden, to remove a cloud on title. From a judgment for plaintiffs, defendant appeals. Modified and affirmed.

On the hearing it was properly made to appear that grants for the land in question were taken out by one D. F. Goodhue, in his own name, and, he having died, the legal title thereto descended to his son, Willie F.; that the Tuckaseegee Mining Company et al. instituted suit in superior court of Graham county, alleging that the lands had been paid for with company's money, and same taken and held for the company's benefit, and, on the facts in evidence, it was at fall term, 1900, among other things, decreed that Willie F. Goodhue held the lands in trust for the Tuckaseegee Mining Company, and same should be conveyed by him to one Jacob S Burnette, as trustee for said company, in terms as follows:

"It is further considered, ordered, adjudged, and decreed by the court that Jacob S. Burnette be, and he is hereby appointed a trustee with full power and whose duty it is to hold the legal title to said tracts of land herein described, with full power to sell said tracts of land at private sale upon such terms as he may think best, and to convey the title to the same to the purchasers of the same by deeds in fee simple, and out of the proceeds of such sales to first pay off and discharge indebtedness of the Tuckaseegee Mining Company incurred both before and since the bringing of this action, and to pay over to the stockholders any surplus which may remain in his hands after discharging said indebtedness of the Tuckaseegee Mining Company according to the respective holdings."

And it was adjudged that the decree in question should operate as a conveyance of title on the trusts above stated.

Jacob S. Burnette having died, this present plaintiff, by decree of superior court, February, 1911, was duly appointed his successor in office "to carry out and discharge the trust imposed upon the lands therein mentioned, and to execute and perform any and all duties devolving upon the original trustee by said judgment of 1900. In this decree it was found, as one of the pertinent facts, that the trustee, Burnette, had made a valid contract to sell the land to one M. E. Cozard, and that the same was outstanding and existent in favor of said bargainee, and reference was made to the claim of defendant in said land, and to the proceedings by which same had been acquired; but no decision was made on the validity of the claim. On the part of the defendant it was shown that A. M. Frye, having a claim for services against the Tuckaseegee Company for legal services rendered to said company in 1903, instituted an action against it and J. S. Burnette, trustee, under and by virtue of the decree aforesaid, to superior court of Swain county, and, not being able to obtain personal service of process on the company, within the jurisdiction of the court, or on the trustee, who was a nonresident, sued out an attachment in the cause, and had same levied on the lands in controversy as the lands of the defendants, the Tuckaseegee Company, and Burnette, trustee, and having also caused publication of the summons and warrant of attachment to be made and filed his complaint, alleging that the company was indebted to him for legal services in the sum of $2,500, and that he had caused attachment to be issued and levied in the cause. At July term, Swain superior court, no answer having been filed or appearance made, the issue of indebtedness was submitted to the jury, and the following verdict rendered:

"Is defendants indebted to plaintiffs for legal service? If so, what amount? Answer: $1,500.00, with interest from Aug. 7, 1903."

And on the verdict, after reciting the recovery, the levy of attachment, etc., it was adjudged, the present writer presiding, that defendants had been duly served with process, and, further, as follows:

"It is further considered, ordered, and adjudged by the court that the defendants, the Tuckaseegee Mining Company and J. S. Burnette, trustee, is indebted to the plaintiffs in the sum of fifteen hundred dollars, with interest on the same from the 7th day of August, 1903, for legal services. It is further considered, ordered, and adjudged by the court the several tracts of land above described, which were levied on by the sheriff of Graham county under the warrant of attachment, be condemned and sold for the payment of this judgment, or so much thereof as may be necessary to pay the same, with costs, and that execution issue on this judgment to the sheriff of Graham county, N. C., commanding such sale."

On execution issued, said lands were sold and purchased by A. M. Frye and deed taken from the sheriff in ordinary form, etc., referring to attachment proceedings, judgments, etc., bearing date May, 1905, and A. M. Frye and wife, by deed, with special warranty, bearing date May 7, 1906, conveyed to defendant, H. B. Whilden, all the right, title, interest, and estate of said A. M. Frye, etc.

Defendant further offered in evidence a deed from J. A. Ammons, sheriff and tax collector, reciting a sale of lands for taxes, same having been listed in the name of the Tuckaseegee Mining Company, and a failure to redeem, etc., conveyed the land to defendant, the deed dated June 13, 1907, also an affidavit by defendant to the effect that, the land having been listed for taxes in the name of the Tuckaseegee Company, and failing to pay, same had been sold and purchased by defendant for $89.74, amount of taxes due, etc., and, not being able upon diligent inquiry to find either the Tuckaseegee Mining Company or J. S. Burnette, the trustee, in Graham county, and there being no tenant or agent of the company residing on the land, etc., defendant had caused a notice to be published in the Cherokee Scout, a newspaper in an adjoining county, there being none published in the county of Graham, in form as follows:

"To the Tuckaseegee Mining Company, take notice: That a sale of real estate for nonpayment of taxes held on the 7th day of May, 1906, in the town of Robbinsville, the following real estate was sold by J. A. Ammons, sheriff and tax collector of said county, to wit: 4,130 acres, more or less, listed in the name of the Tuckaseegee Mining Co., said lands lying in Yellow Creek township, Graham county, being the lands embraced in state grants Nos. 3529, 3530, 3543, 3425, 3521, 3528, 3519, 3518, 3530, 3526, 3527, 3532, 3531, 3533, 3522, 3534, 3535, and 3520, which said lands were sold for the taxes due for the year 1905, amounting to $89.74, including the cost of sale, at which sale the undersigned became the purchaser of said land. The owner of said land will take notice that the time of redemption of said lands will expire on the seventh day of May, 1907. This the 8th day of January, 1907. H. B. Whilden, Purchaser."

The court charged the jury, if they believed the evidence, to answer the issues as shown, and the following verdict was rendered:

"(1) Is the plaintiff, Fred S. Johnston, the owner of the lands described in the complaint, as trustee for the purpose set out in the decree of spring term, 1900, of Graham county superior court in the case of Tuckaseegee Mining Co. v. Willis

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