McIver v. Stephens

• Decision Date: 22 October 1888
• Citation: 7 S.E. 695,101 N.C. 255
• Parties: McIVER et al. v. STEPHENS et al.
• Court: North Carolina Supreme Court

7 S.E. 695

101 N.C. 255

McIVER et al. v. STEPHENS et al.

Supreme Court of North Carolina

October 22, 1888

Action by John M. McIver and James Dalrymple, of the firm of McIver & Dalrymple, against Sarah E. Stephens and Benton P Stephens, to recover land. Judgment for plaintiffs, and defendants appeal. Plaintiffs claimed under a sale of the land of Jones Stephens to pay debts, and defendants offered to show that more land was sold than was included in the petition, and also that the order of sale in respect to the payment of the bid was not complied with.

An issue submitted to the jury whether plaintiffs are owners in fee simple of the lands in controversy includes an issue whether the sale and deed under which plaintiffs claim are operative and valid, and refusal to submit the latter is not error.

R. P Buxton, for appellants.

W. A Guthrie, for appellees.

DAVIS J.

Civil action to recover land, tried before AVERY, J., at August term, 1888, of the superior court of Harnett county. It is admitted that both plaintiffs and defendants claim title to the land in question through Jones Stephens; and that the defendants were in possession of the land in controversy when the action was brought, and are still in possession. The plaintiffs allege that Jones Stephens died seized and possessed of the land described in the complaint. That on the 12th day of June, 1880, the defendants, Sarah E. Stephens and J. S. Stephens, executrix and executor of Jones Stephens deceased, filed a petition in the superior court of Harnett county to sell said lands, to make assets to pay the debts of their testator. That the devisees of Jones Stephens, deceased, were made parties to said petition, and by an order of said court B. F. Shaw was appointed commissioner to sell said land; and that the said commissioner did, on the 7th day of May, 1883, after due advertisement, pursuant to the order of said court, sell said lands at public auction, and the plaintiffs became the purchasers, and complied with the terms of sale. That the sale was reported by the said Shaw, commissioner, to the said court; and by a final decree in the cause the sale was in all respects, on the 17th day of May, 1883, approved and confirmed, and the said commissioner ordered to make title to the purchasers upon payment of the purchase money; and that on the 30th day of October, 1883, the said B. F. Shaw, commissioner, upon receipt of the purchase money, executed to the plaintiffs a deed in fee for said lands, which has been duly proved and registered. That the defendants are in possession of said lands, and unlawfully and wrongfully withhold the possession thereof from the plaintiffs. The defendants, in their answer, say "that, while a petition was filed in the name of the executors of Jones Stephens to sell land for assets, it was a proceeding not understood by them, and did not receive their concurrence, and would not have been allowed if properly understood, and that there was no necessity for such proceeding; that they did not know of the appointment of B. F. Shaw as commissioner to sell said land, and did not consent that the whole proceeding should be taken out of their hands; that as to the allegations in regard to the sale, the report of the commissioner, confirmation of sale, etc., they have no knowledge or information sufficient to form a belief, and demand that full proof be made of the regularity of the whole proceeding to make real estate assets. For a further defense these defendants say they are the rightful owners, under the will of Jones Stephens, of the real estate claimed by the plaintiffs; and that the whole proceedings instituted under the forms of law, in effect, by the plaintiffs, or some of them to deprive them of their land, are illegal and colorable only, wholly defective, and without authority of law, fraudulent and void, as they are advised and believe, and ask that they be set aside, and for such other and further relief as they may be entitled to."

The following issues were submitted to the jury: "(1) Are the plaintiffs the owners in fee-simple of the lands in controversy? (2) Were the defendants in possession of said lands when the action was brought?" To these issues the jury responded, "Yes;" and there was a judgment for the plaintiffs, from which the defendants appeal. The case on appeal states that "plaintiffs offer deed from B. F Shaw, commissioner, to plaintiffs, dated October 3, 1883. Description admitted to be the same incorporated in the complaint for ___ tracts. A copy is attached, marked 'A.' This deed, and other papers referred to in the record as 'Exhibits,' indicated by letters, do not appear with the record, but they seem not to be material in determining the questions raised. The plaintiffs offered, in evidence a copy of the petition to sell land, and record of proceedings instituted by J. L. & S. F. Stephens, Executors of Jones Stephens, vs. Benton P. Stephens. The petition was filed in January, 1880, and verified by S. F. Stephens, executrix; and, among other things, asks that James Darlymple be appointed commissioner to make the sale. In the petition the age of B. P. Stephens is stated to be 20 years. The summons was issued the 13th day of May, 1882; served June 1, 1882." There is a further indorsement in these words: "Returned into office 2d October, 1884. J. W. A., S. C. A." An order of sale was made on the 2d of April, 1883, in which B. F. Shaw was appointed commissioner to make the sale. There was a report of sale made May 7, 1883, by B. F. Shaw, commissioner, in which...