Leary v. Fletcher

• Decision Date: 31 December 1840
• Citation: Leary v. Fletcher, 1 Ired. 259, 23 N.C. 259 (N.C. 1840)
• Court: North Carolina Supreme Court
• Parties: DEN ex dem. of J. H. LEARY and WIFE v. FRANCIS FLETCHER.

1 Ired. 259

23 N.C. 259

DEN ex dem. of J. H. LEARY and WIFE

v.FRANCIS FLETCHER.

Supreme Court of North Carolina.

December Term, 1840.

The County Court, in proceeding under the act of 1789, (Rev. Stat. c. 63, s. 11,) authorizing an order to issue to a guardian empowering him to sell the property of his ward for payment of the debts of the ward, must first ascertain that there are debts due by the ward which render the sale of the property expedient; and the court must also select the part or parts of his property, which can be disposed of with least injury to the ward.

Therefore an order of the County Court in the following words: “Ordered that A. W. (the guardian) have leave to sell as much of the lands belonging to the orphans of Stephen Mullen, dec'd, as will satisfy the debts against said deceased's estate” is unauthorized by law, and void; and a purchaser under a sale, made by the guardian in pursuance of such order, acquires no title.

This was an action of Ejectment, tried at Pasquotank Superior Court of Law, at Spring Term, 1840, before his honor Judge PEARSON, for certain lands described in the declaration, of which defendant admitted he was in possession.

It was admitted that the lands in dispute had once belonged in fee simple to the father of the plaintiff Elizabeth, and descended to her as his heir, and defendant had purchased the same of her guardian, as hereafter set forth at a fair price, and in good faith; and the only question was whether the guardian could lawfully sell the land, under the order of the court herein set forth. Addison Whidbee was duly appointed guardian of the plaintiff Elizabeth, and acted as such up to the time of her marriage with the plaintiff John, and obtained the order of the County Court, recited below, under which order he sold and conveyed the lands to the defendant's father, A. Fletcher.

The defendant proved that Ambrose Knox was the administrator of the father of the plaintiff Elizabeth, from whose father the lands descended, and offered in evidence a judgment against the said administrator, for about $260 and costs, in which the plea of fully administered had been found in favor of the administrator, and the claim prosecuted to judgment against the heirs of the father of the said Elizabeth, one of the lessors of the plaintiff. The defendant further proved that the administrator claimed the sum of eleven hundred dollars, due to him from the estate of his said intestate, more than he had personal assets to satisfy, at the time the order of the County Court was granted and the sale made; but also shewed that his claim was afterwards paid by assets coming to his hands, which at that time were known neither to the administrator nor to the guardian. It also further appeared that the guardian had paid off the judgments out of his own funds, before he had obtained the order of sale. The amount for which the land sold was eighteen hundred and twenty-six dollars and some cents.

The following order of sale from the County Court of Pasquotank was produced in evidence, as the order under which the guardian acted:

Pasquotank County Court...