Marcom v. Wyatt

• Decision Date: 05 November 1895
• Citation: 23 S.E. 169,117 N.C. 129
• Parties: MARCOM v. WYATT et al.
• Court: North Carolina Supreme Court

23 S.E. 169

117 N.C. 129

MARCOM v. WYATT et al.

Supreme Court of North Carolina

November 5, 1895

Appeal from superior court, Wake county; Starbuck, Judge.

Proceeding by J. C. Marcom, as administrator of W. H. Bledsoe, deceased before the clerk of the Wake county superior court, against his intestate's next of kin, looking to the sale of certain lands belonging to the estate, in order to enable him to pay the intestate's debts. From an order confirming the sale, defendants appealed to the judge of the superior court; and, upon his approving the rulings of the clerk, they again appeal. Reversed.

A purchaser at an administrator's sale is not entitled to an order for possession, where the defendants to the administrator's petition for permission to sell were not in possession when the order was made.

T. R Purnell, for appellants.

J. C L. Harris, for appellee.

MONTGOMERY J.

This was a special proceeding before the clerk of the superior court of Wake county, instituted by the administrator of W. H. Bledsoe, deceased, against the next of kin of the intestate, one of whom, Moses A. Bledsoe, Jr., was an infant, for the purpose of selling certain lands belonging to the estate of the intestate, the proceeds of the sale to constitute assets for the payment of his debts. The summons was served on all the defendants, and also upon the guardian ad litem of the infant defendant. There was no answer put in, except that of the guardian ad litem, in which he admitted the facts set out in the petition, and consented to the sale. The clerk, at the proper time, made a decree for the sale of the land described in the petition. The administrator made the sale according to the terms of the decree, and filed his report on the 4th of November, 1894. On the 15th of the same month the attorney of the administrator prayed for a confirmation of the sale, and for an order for possession. Whereupon, Moses A. Bledsoe, attorney, made an appearance for the defendants, and also a special appearance for numerous persons who were not parties to the proceeding, and opposed the confirmation of the sale on the grounds (1) that the persons who made the special appearance through him to oppose the confirmation of the sale were the real owners of the land, or had an interest therein; and (2) that T. R. Purnell was attorney of record for the administrator plaintiff, and the attorney and adviser of the defendant guardian ad litem. The clerk overruled the objections, and confirmed the sale; ordered the administrator, upon payment of purchase money, to make title; and granted the motion for an order for possession. There was an appeal to the judge of the district, and, upon his confirming and approving the rulings of the clerk, the matter was brought to this court.

There was no error in the clerk's refusal to permit the adult defendants to try to prove title in strangers to the land which had been sold. Besides, they had had their day in court, and failed to make any answer. Neither was there error in the...