McIver Park, Inc. v. Brinn

• Decision Date: 03 November 1943
• Docket Number: 236.
• Citation: 27 S.E.2d 548,223 N.C. 502
• Parties: McIVER PARK, Inc., v. BRINN et ux.
• Court: North Carolina Supreme Court

27 S.E.2d 548

223 N.C. 502

McIVER PARK, Inc., v. BRINN et ux.

No. 236.

Supreme Court of North Carolina

November 3, 1943

On July 15, 1941, plaintiff and defendant W.J Brinn entered into a written contract by the terms of which plaintiff agreed that, on or before July 24, 1941, and for an agreed purchase price, it would make, execute and deliver to him, or such person as he may in writing direct, "a good and sufficient deed, with full covenants and warranties release of dower, etc.", conveying subject to certain restriction referred to, "a good and merchantable title in fee simple" to a certain lot of land, specifically described, and being lot No. 5 in the Palmer addition to McIver Park surveyed as set forth, containing six acres, more or less; and defendant W.J. Brinn agreed to accept such deed so tendered and to pay the agreed purchase price. Defendant W.J. Brinn having directed that deed be made to him and his wife, plaintiff, on July 15, 1941, and again on August 29 1941, tendered to defendants W.J. Brinn and wife a deed sufficient in form to meet the requirements of its agreement to convey said land subject to restrictions referred to as above set forth, but defendants refused to accept same and to pay the purchase price for that, aside from the restrictions to which the conveyance was to be subject, plaintiff did not have and could not convey same by a good and merchantable title in fee simple.

The land so in controversy is embraced within the boundary of certain tracts of land, containing 117.6 acres more or less of which Job Palmer died seized about the year 1910 and which was divided among his four heirs at law by order of court in 1911. To his son Amos Palmer, referred to also as J. Amos Palmer and as J.A. Palmer, lot No. 3, containing 22 1/4 acres, and subdivision A of lot No. 1, known as the dower lot, containing 6 acres, were allotted; and to his son Walter Palmer, referred to also as J. Walter Palmer and as J.W. Palmer, lot No. 4, containing 23 1/4 acres, and subdivision D of lot No. 1, known as the dower lot, containing 5 1/2 acres, were allotted. The subdivisions A and D of lot No. 1 were allotted subject to the dower of Emeline Palmer, widow of Job Palmer, who died in the year 1932. And the land in controversy is part of the lands so allotted to Amos Palmer and to Walter Palmer.

As to the Amos Palmer land so allotted to him in the division of the Job Palmer land: J. Amos Palmer and wife, Minnie, by deed dated February 21, 1912, and registered, conveyed same to his son, Sam Palmer, and his daughter, Lenora Palmer (who afterwards married Ned Berryman), and on April 26, 1938, Lenora Palmer Berryman and husband, Ned Berryman, by quitclaim deed, of record, conveyed to K.R. Hoyle her one half interest and other interest she might have in the two lots conveyed to her as above stated. And as to the Walter Palmer land allotted to him in the division of the Job Palmer land, Walter Palmer died in the year 1929 seized of same and survived by his wife, Margaret Palmer, and two children Henrietta, who married Ed McNeill, and Lula Belle Palmer. Thereafter, on September 30, 1938, two separate foreclosure proceedings were instituted by Lee County under C.S. § 7987, as amended by Pub.Laws 1931, c. 83, and C.S. § 7990 to foreclose liens of delinquent taxes on the Amos Palmer land and on the Walter Palmer land, respectively. And plaintiff claims title to land in controversy under commissioner's deed executed under authority of orders in said tax foreclosure proceedings. The portions of these proceedings to which the questions involved on this appeal relate will be referred to in proper place hereinafter.

This cause was referred, and to certain findings of fact and conclusions of law made by the referee both plaintiff and defendants Brinn filed exceptions, and to the rulings of judge of the Superior Court on these exceptions, and to judgment rendered defendants Brinn except and assign error, and appeal to the Supreme Court.

Teague & Williams, of Sanford, for appellants.

K.R. Hoyle, and W.W. Seymour, both of Sanford, for appellee.

WINBORNE Justice.

While the record on this appeal is voluminous, and the judgment rolls in the tax foreclosure proceedings appearing as exhibits, and as supplemented by addenda, are unusual in their arrangement, sufficient facts are discoverable, and have been ferreted out, for an understanding of the points to which the challenge to the judgment below is directed as set forth in questions involved as stated in brief for appellants filed in this Court. These questions, with pertinent facts, are considered seriatim.

The first, third and eighth questions may be considered together. They are not sustainable. The first relates to the refusal of the court to make new parties to this action. The third relates to a finding by judge of Superior Court that the summons issued in November, 1939, in the tax foreclosure proceeding relating to the Amos Palmer land was just another summons in the same action as that instituted in September, 1938,--in amendment to finding by referee that it commenced a new action. The eighth challenges the validity of an order of the clerk of Superior Court consolidating the action as originally instituted and the action resulting from the issuance of summons in November, 1939. The facts show that while the action was originally instituted under C.S. § 7987, as amended by Pub.Laws 1931, c. 83, and C.S. § 7990 for the foreclosure of the lien of delinquent taxes for the years 1928 to 1936, a change was made in attorney for the plaintiff, Lee County, and a summons was issued in November, 1939, and another complaint was filed declaring on the lien of delinquent taxes for years 1933 to 1937, both inclusive. In his answer to this complaint, defendant K.R. Hoyle, individually and as trustee, suggested and prayed that the two actions (so referred to) be consolidated. The order of consolidation followed in March, 1940. And the judgment roll of the proceeding fails to show objection by any party thereto. The power of the court to consolidate certain actions is recognized and frequently exercised. Where actions are pending in the same court, at the same time, between the same parties, and involving substantially the same facts, they may be consolidated. See McIntosh N.C. P & P, 536, et seq.; Henderson v. Forrest, 184 N.C. 230, 114 S.E. 391; Brady v. Moton, 185 N.C. 421, 117 S.E. 339; Blount v. Sawyer, 189 N.C. 210, 126 S.E. 512, and cases cited.

Therefore, if the issuance of the summons in November, 1939, commenced a new action the order of consolidation was proper, as both were pending in the same court, at the same time, between the same parties, and involved substantially the same facts. But appellant also contends that the summons issued in November, 1939, fails to show that it was received by the sheriff, and, hence, no new action was instituted. Nevertheless, the judgment roll shows that a summons called an alias was issued on March 5, 1940, and was served either personally or by publication, and the referee so finds, and the judge properly approves the finding. The persons served include those whom the court refused to make parties to present action. They were in court there, and except such as were minors, for whom no guardian ad litem was appointed, are bound by the judgment rendered there, and hence there was no necessity for them to be brought into court in this action.

The second question as restated in supplemental and additional brief of counsel for appellant relates to this factual situation: In the tax foreclosure proceeding relating to Amos Palmer land, it being made to appear by affidavit of K.R. Hoyle, original attorney for plaintiff therein, and a party thereto, that the original papers had been lost, and could not after due diligence be found, but that the papers presented by him are true and correct copies of (a) the original alias summons and return, showing service on certain named defendants, (b) affidavits and order for publication of summons and copies served, (c) answer of K.R. Hoyle and order appointing Edwards as commissioner, (d) order substituting T.J. McPherson as commissioner in certain tax cases, and reports of Edwards, commissioner, and raised bids and orders, the clerk, finding that such papers are true copies of the originals, ordered that same be substituted and restored and ordered filed as a part of the judgment roll in the cause. And it does not appear that any objection was made in the tax foreclosure proceeding as to the regularity of the order substituting copies for the lost originals. However, defendants Brinn in present action object and except to admitting in evidence that part of the judgment roll. Furthermore, said defendants herein object and except to testimony of Deputy Sheriff Bullock that he remembers making service of the alias summons as indicated thereon.

These exceptions are properly overruled for these reasons: First: It is provided by statute in this State, C.S. § 544, that if any pleading is lost or withheld by any person, the court may authorize a copy to be filed and used instead of the original. Moreover, in Bray v. Creekmore, 109 N.C. 49, 13 S.E. 723, it is held that judgment of the trial court permitting lost pleadings to be substituted is not reviewable. See, also, Walden v. Cheek, 193 N.C. 744, 138 S.E. 13. Second: The competency of the testimony of the officer finds support in the recent case of Lee v. Hoff, 221 N.C. 233, 19 S.E.2d 858, where the authorities are cited.

The fourth question is formal and, in the light of decision on other questions, needs no consideration.

The fifth and ninth questions may be considered together. The fifth relates to a receipt on the judgment docket for the distributive...