Lovinier v. Pearce

• Decision Date: 31 January 1874
• Citation: 70 N.C. 167
• Court: North Carolina Supreme Court
• Parties: JOHN C. LOVINIER, Exec'r., .. v. W. H. PEARCE, Guard'n. ad litem and others.

70 N.C. 167

JOHN C. LOVINIER, Exec'r., ..

v.W. H. PEARCE, Guard'n. ad litem and others.

Supreme Court of North Carolina.

January Term, 1874.

In a proceeding to subject real estate to sale for assets, after a report of the sale is returned and confirmed, the Judge of Probate, upon proper cause shown, has the right to set the sale aside, and order a resale of the property.

And although the exercise of this right is discretionary with the Judge of Probate, still it is such a matter of legal discretion, involving a “matter of law or legal inference,” that an appeal will lie from his decision.

There are questions of fact, as distinguished from issues of fact which the Probate Judge in cases before him, and the District Judge in cases before him, may decide without a jury. And in a motion made to set aside a sale, it is not necessary for the Judge in case of appeal, to send to the appellate Court a separate statement of the facts upon which his decision rests when the affidavits and counter-affidavits for and against the motion accompanies the case.

( Thompson v. Cox, 8 Jones, 314; Wescott v. Hulett, 67 N. C. Rep. 192; Klutts v. McKenzie, 65 N. C. Rep. 102, cited and approved.)

CIVIL ACTION, (motion to set aside a sale and re-open biddings,) heard before Clarke, J., at Chambers, in CRAVEN county, on the 13th day of April, 1873.

The plaintiff filed his petition before the Judge of Probate, to sell real estate for assets. From a decision of his, refusing to set aside the sale, an appeal was taken to the Judge of the District, at Chambers. From his decision, setting aside the sale, the plaintiff appealed to the Supreme Court. The facts are fully stated in the opinion of the Court.

Haughton, with whom was Battle & Son, for appellant , objects: That in this case, the Judge does not find the facts, as is required by the Code of Civil Procedure, secs. 110, 113, 115.

The Judge set forth upon the record his decision in writing, and from that the appeal is taken. Clegg v. N. Y. White Soap Stone Company, 66 N. C. Rep., 390; Powell v. Weith, ibid, 424.

This Court will not try questions of fact, 67 N. C. Rep., 455.

After confirming the report, the jurisdiction of the Probate Court was at an end. Wescott v. Hulett, 67 N. C. Rep., 192; Thompson v. Cox, 8 Jones, 314.

A Court of Equity would not open biddings except under peculiar circumstances. Ashbee and others v. Crowell and others. Busb. Eq., 138.

If the sale is set aside, the parties must be put in statu quo. Adams Eq., 173. This cannot be done on motion, but must be done by bill or petition. Tate v. Powell, 64 N. C. Rep., 647; Evans v. Singeltary, 63 N. C. Rep. 206.

Green and Stephenson, contra .

READE, J.

The plaintiff, as executor, instituted proceedings in the Probate Court, for license to sell the real estate of his testator, to pay debts. A sale was ordered and made by the plaintiff, and the land was bid off by one Long. The plaintiff reported a fair sale, for a full price, and money paid. And thereupon the Probate Court confirmed the sale, and ordered the title to be made; and title was made to said Long, who immediately re-conveyed to the plaintiff. It was also ordered that the cause be retained, and that the executor, after paying the debts, should pay the surplus into Court for the benefit of the devisees.

Subsequently the defendant, Pearce, guardian of the defendants who are interested in the lands, filed an affidavit in the cause, setting forth that said Long bid off the land for and at the request of the plaintiff, and paid nothing for it, and reconveyed it to the plaintiff, and that the debts of the estate had not been paid; and that the plaintiff was insolvent. And moved that the order of sale, and the order confirming the sale, be set aside and a re-sale ordered.

The plaintiff files a counter affidavit, in which he admits, that fearing the land would not sell for its value, he acquainted Long with the value, and through his representation, Long was ind??ced to bid off the land; and then he bought it from Long. He does not pretend that Long ever paid a dollar of the price, or even that he himself had accounted for the price and paid it to the debts of the estate. And he does not deny the allegation of the defendants, that the debts of the estate, to pay which the land was sold, have not been paid; and that he is insolvent. In his report of the sale to the Probate Judge, he had said, that instead of giving bond for the price, Long had paid the cash.

In his counter affidavit he does not pretend that Long either complied with the terms of the sale by giving bond, or that he had paid the cash. This, according to his own showing, was a fraud upon the Court.

Upon this showing, it was clearly the duty of the Probate Judge to set aside the sale. And this he says he would have done if he had been satisfied ““beyond a doubt” of two things: first, that there was “collusion” between the plaintiff and Long; and, secondly, that the land did not sell for a fair price.

What idea the Probate Judge had of “collusion,” and what amount of evidence would have satisfied him “beyond a doubt,” is not clearly seen. The sale was a sham, not a dollar was paid, or secured to be paid, and the report of the sale was false, and the debts for which the land was sold have not been paid. By whatever name this may be called, it is certainly not such a transaction as can have the sanction of the Courts. The Probate Judge puts his refusal to vacate the order of sale upon the ground that the land sold for a fair price; and, therefore, the defendant's interests had not suffered. The answer is, that it did not sell for anything at all. The sum bid may have been its value, but nothing was paid. And a further answer is, that when a fraud appears, a party against whom it is practiced has the right to be relieved against it, and he is not put to show “beyond a doubt,” that he will be injured. And where a Court has been used as the instrument to perpetrate a fraud, the Court owes it to the administration of justice to set the matter right.

Upon the refusal of the...