Peal v. Martin

• Decision Date: 10 October 1934
• Docket Number: 91.
• Citation: 176 S.E. 282,207 N.C. 106
• Parties: PEAL v. MARTIN.
• Court: North Carolina Supreme Court

176 S.E. 282

207 N.C. 106

PEAL v. MARTIN.

No. 91.

Supreme Court of North Carolina

October 10, 1934

Appeal from Superior Court, Washington County; Small, Judge.

Action by W. D. Peal, administrator of the estate of Mrs. L. C Spruill, deceased, against Mrs. Estelle Martin administratrix of the estate of Van B. Martin, deceased. From a judgment of nonsuit, plaintiff appeals.

Affirmed.

Prior to April, 1923, a suit was pending in Washington county entitled "Dr. W. H. Hardison and W. D. Peal Administrators of Mrs. L. C. Spruill, deceased, v. C. W Overton, Sarah E. Overton, T. N. Gray and H. G. Walker, Trustee." At the April term, 1923, certain issues were submitted and answered by the jury and a final judgment entered. This judgment decreed that Dr. W. H. Hardison recover of the defendants the sum of $1,024.00, "and that W. D. Peal, Administrator, C. T. A. of Mrs. L. C. Spruill recover of the defendants * * * the sum of $3,250.00, and that Van B. Martin be and he is hereby appointed commissioner of the court to sell the property described in the mortgage, * * * and apply the proceeds of sale on the deed of trust to Dr. W. H. Hardison and the remainder, if there be any, to the mortgage and interest of Mrs. L. C. Spruill." Thereafter at the October term, 1923, an order was entered allowing the defendants to answer, and the cause came on for hearing at the October term, 1924, before Devin, J., who entered the judgment containing the following provision: "It further appearing to the court and the court finding the facts to be that the property described in the instruments aforesaid has, by orders heretofore entered in this action, been sold and bid in by W. T. Phelps at the sum of $4,450.00 and all parties to this action having ratified the said sale in open court, it is ordered by the court that Van B. Martin, as Commissioner of the Court, proceed forthwith to execute deed of conveyance for the said property to the said W. T. Phelps at the price aforesaid upon payment of the purchase money and out of the said money to pay first the amount herein adjudged to be due Dr. W. H. Hardison and to pay the remainder of the said amount over to the said Peal, administrator, to be applied upon the said purchase money indebtedness herein adjudged to be due him as administrator." It was further provided that, in the event Phelps did not pay the purchase money, the commissioner proceed to readvertise and resell the property "and make report of his proceedings to the clerk of this court," etc.

The evidence disclosed that Martin, commissioner, had duly sold the land on the 28th day of May, 1923, pursuant to the judgment entered at the April term, 1923, and collected the entire purchase price amounting to $4,480, and deed for the premises had been duly delivered to the purchaser. The deed by Martin, commissioner, to Phelps, made pursuant to the judgment, recited a report of the sale and confirmation thereof. However, the clerk of the superior court testified that there was no record in his office of any report made by the commissioner or of any final account. Van B. Martin, commissioner, died on the 25th day of June, 1930, and the plaintiff filed a claim with his administratrix for the sum of $2,339.76, being the balance claimed by the plaintiff upon the purchase price of the land. The administratrix denied liability upon the claim, and thereupon, on the 7th day of June, 1932, this action was instituted by the plaintiff to recover said sum from the estate of the deceased commissioner. The plaintiff, as a witness in his own behalf, undertook to testify that Van B. Martin, deceased, was his attorney, and that he actually saw the commissioner receive the money from Phelps, the purchaser, and that he had made demand upon Martin to pay from time to time.

At the conclusion of the evidence, the trial judge sustained a motion of nonsuit, and the plaintiff appealed.

W. L. Whitley, of Plymouth, for appellant.

Zeb Vance Norman, of Plymouth, for appellee.

BROGDEN Justice.

A commissioner is appointed in a civil action tried in the superior court to sell land and to pay a specified portion of the proceeds to the plaintiff in this action. The land is duly sold in May, 1923, and the commissioner received the money. The commissioner died on June 26, 1930, and thereafter in June, 1932, the plaintiff institutes this action against the administratrix of the commissioner to recover said sum of money, alleging that the commissioner had not paid the money as directed in the judgment, and that no...