Mclaurin v. Mclaurin

• Decision Date: 25 March 1890
• Citation: 10 S.E. 1056,106 N.C. 331
• Court: North Carolina Supreme Court
• Parties: McLaurin v. McLaurin.

10 S.E. 1056

106 N.C. 331

McLaurin

v.McLaurin.

Supreme Court of North Carolina.

March 25, 1890.

Administrators' Sales—Fraud—Practice.

1. An order of sale of land of an intestate to pay debts, granted in special proceedings by the administrator for that purpose, the sale thereunder, and the order of confirmation, cannot be set aside for fraud on motion in the cause simply, but only by independent action, after the order of confirmation is made, as it is a final judgment.

2. Neither the clerk of the superior court, acting for the judge in vacation, nor the judge in term-time, has authority to remove an administrator on motion in a special proceeding by him to sell land of his intestate for payment of debts.

Appeal from superior court, Cumberland county.

Sutton & Cook, for appellant.

Merrimon, C. J. This was a special proceeding brought by the plaintiff, adminis trator, to obtain a license to sell lands of his intestate to make assets to pay debts of the latter. The heirs at law of the intestate were regularly made parties defendant. The petition alleged particularly that the personal assets were insufficient to pay the debts of the intestate. The court made an older directing a sale of the land for cash by the plaintiff, as commissioner and administrator. The land was sold by him in pursuance of the order, and he made report that he had sold the same for cash, and that it was sold for a fair price. Thereupon the court, on March 9, 1889, made an order, of which the following is a copy: "This cause coining on to be heard, and it appearing that the sale was made in pursuance of the order heretofore made, after due advertisement as per report of John A. McLaurin, commissioner, and it being made to appear from proper evidence that the land brought a fair price, and no objection having been filed within the time prescribed by law, now, on motion, itis adjudged and decreed that the report of John A. McLaurin, commissioner, and the sale of the lands as therein reported, be in all respects confirmed; and the said McLaurin, commissioner, is authorized and directed to make title to the purchaser or purchasers upon payment of the purchase money. " Afterwards, on the 31st day of August, 1889, one of the defendants (the appellant) moved to set aside the order next above recited, and other interlocutory orders preceding it, for suggested irregularities, for fraud on the part of the plaintiff administrator in procuring such order, and also to remove the plaintiff from his office as administrator. He supported his motion by his affidavit, in which he set forth fully the principal grounds thereof. The plaintiff moved to dismiss the motion on the grounds: "(1) For that the same charges fraud, and this court has no jurisdiction; (2) for that the sale has been duly reported and confirmed, and if the defendant M. E. McLaurin (the appellant) desires to attack the same, it can only be done by an independent action; and (3) because two separate and distinct causes of action have been improperly joined."

The court (the clerk) refused to dismiss the appellant's motion, and the plaintiff appealed to the judge, who reversed the order of the clerk, and directed that the motion of the appellant be dismissed, etc.; basing his judgment upon the grounds: "(1) That there had been a formal judgment in the proceedings to sell the lands for assets, and the said proceedings are no longer pending; that the defendant M. E. McLaurin seeks to have the sale and order of confirmation set aside upon the ground of fraud. This can only be accomplished by an independent action, and not by a motion in the cause. (2) That the motion to remove the administrator, of which the clerk has jurisdiction, is improperly joined with the proceeding to vacate the sale and confirmation thereof." From this judgment the complaining defendant, having excepted, appealed to this court.

The special proceeding in this case is in the superior court; and the clerk thereof, in making the orders complained of, was act-ing as and for that court, and not excer-cising his own jurisdictional functions, as lie might do in matters of probate and other matters as to which he has special jurisdiction conferred by the statute. Code, §§ 102-116. Neither the clerk acting for the court in vacation, nor the court judge in term-time, had authority in the special proceeding to remove the administrator. Separate appropriate application for such removal should have been made to the clerk, exercising his...