Perky v. Wife

• Decision Date: 31 October 1887
• Citation: 3 S.E. 729,98 N.C. 167
• Court: North Carolina Supreme Court
• Parties: Perky v. Adams and Wife.

3 S.E. 729

98 N.C. 167

Perky

v.Adams and Wife.

Supreme Court of North Carolina.

October 31, 1887.

1. Executors and Administrators—Sale of Realty—Service on Minors.

In an action to recover possession of land, it appeared that the plaintiff in good faith had bought the same at a sale by the administrator, under an order of court, for the purpose of paying debts of the intestate; that the feme defendant, an heir of the intestate, at the time of such sale was five years of age, and had a general guardian; that neither the. guardian nor ward were made defendants in the petition, nor served with summons or process, in the proceeding; that no guardian ad litem had been appointed, nor any defense made, in behalf of the minor. Held, the provisions of Code N. C. § 1438, requiring that "no order to sell real estate shall be granted till the heirs or devisees of the decedent have been made parties to the proceeding, by service of summons, either personally or by publication, " applying to infants as well as adults, such sale was void.

2. Infancy—Procef.dings against—Lack of Service.

Code N. C. § 387, making valid judgments and other proceedings against infants in certain cases, has no application to a judgment recovered in a proceeding in which there was no service of process upon the infant, or any other person in his behalf.

3. Subrogation—Invalid Executor's Sale—Eights OF Purchaser.

Where one purchased land in good faith at an administrator's sale under order of court for the purpose of paying debts of the intestate, which sale, it subsequently appeared, was void for informality, held, the purchase money having been applied to the payment of the debts of the decedent, the vendee was entitled to be subrogated to the rights of the creditors, and to have the amount due him charged upon the land.¹

Appeal from superior court, Granville county; Clark, Judge.

Batchelor & Devereux and E. C. Smith, for plaintiff. D. G. Fowle and M. V. Lanier, for defendants.

Merrimon, J. It appears that John E. Perry died intestate in the county of Granville some time in the year 1864, leaving surviving him as his only heir at law the feme defendant, then an infant of tender years, who has since intermarried with her co-defendant.

At the February term of 1866 of the late court of pleas and quarter sessions of the county named, Samuel D. Coley was duly appointed administrator of the estate of the intestate named; and at the February term of 1867 of that court the feme defendant then being about five years of age, the administrator filed his petition therein, praying the court to grant to him a license to sell the land of his intestate, described in the complaint, to make assets to pay debts of his intestate. A license was granted; the land was sold in pursuance of the order of the court by the administrator; the plaintiff became the purchaser thereof on the twenty-ninth day of April, 1867, at the price of $700; the sale was confirmed by the court; and the purchase money having been paid, in pursuance of the order of the court, the administrator executed a deed purporting to convey the title to the land to the plaintiff, and thus he claims to derive title to the same. The feme defendant was named as defendant in the petition mentioned, and she then, and next thereafter for a long while, had a general guardian; but there was no service of a summons or any process on her, she being an infant, nor was her general guardian named or made a defendant in the petition, nor was any summons or other process served on him in that respect, nor was any guardian ad litem appointed for her in that behalf, nor was any defense made for her, nor was the petition sworn, nor were there any affidavits filed or accounts taken to prove the existence of necessity for selling the land to make assets.

The defendants being in possession of the land, the plaintiff brought this action to recover possession thereof, claiming to have derived title thereto by virtue of the deed executed to him by the administrator mentioned, and the proceedings, orders, and decrees made by the said court authorizing him to make the same. The defendants admit that they are in possession of the land, but deny that the plaintiff is entitled to have possession thereof, and, further, that he has any title thereto; and insist that the proceedings mentioned, and the orders and decrees therein, and the sale of the land made in pursuance thereof, are, as to the feme defendant, null and void. The plaintiff, having alleged in the complaint the circumstances of his title, insisted that, if it was not good and sufficient, then and in that case he would be entitled to be paid the money he so paid for the land, and the interest thereon, and to have the same declared to be a charge upon the land; and he demanded judgment accordingly, and asked for general relief.

On the trial, the jury found, in response to issues submitted to them, that the plaintiff was not entitled to the possession, nor was he the owner of the land; that he paid for the same, to the administrator named, $700 on the twenty-ninth of April, 1867; that the plaintiff had had possession of the land under his supposed purchase for 13 years; and that the fair rental therefor for each of these years was $37. The court adjudged that the plaintiff was not entitled to recover possession of the land, but gave judgment in his favor for the sum of $1,006.50, the money and interest thereon that he paid therefor, less the value of the rents thereof for 13 years, and declared the same to be a lien upon the land in favor of the plaintiff. The plaintiff appealed from the judgment to this court, assigning several grounds of error, and the defendants did likewise; but the view the court takes of the assignments of error in both appeals, considered together, renders it unnecessary to state or advert to them severally or in detail.

The administrator named was not made a party to the action. On the trial, evidence was received tending to prove that he received from the plaintiff the purchase money of the land, and applied it properly in...