Perry v. Jolly

• Decision Date: 01 May 1963
• Docket Number: No. 380,380
• Citation: 259 N.C. 305,130 S.E.2d 654
• Parties: H. K. PERRY v. W. M. JOLLY, Guardian of Florence Johnson Perry, incompetent, and Hilda P. Pearce and husband, Marshall E. Pearce, Purchasers.
• Court: North Carolina Supreme Court

Page 654

130 S.E.2d 654

259 N.C. 305

H. K. PERRY v. W. M. JOLLY, Guardian of Florence Johnson Perry, incompetent, and Hilda P. Pearce and husband, Marshall E. Pearce, Purchasers.

No. 380

Supreme Court of North Carolina.

May 1, 1963

Gaither M. Beam, Louisburg, for appellant.

John F. Matthews, Louisburg, for appellee.

On August 7, 1962, H. K. Perry, petitioner, instituted this special proceeding before the Clerk Superior Court against W. M. Jolly, Guardian of petitioner's wife, Florence Johnson Perry. The purpose of the proceeding was to have the court authorize the private sale of a specifically described tract of land containing 120.5 acres in Franklin County. The petition alleged:

'1. That Florence Johnson Perry is the wife of the petitioner, and is of the age of (77) years, and has heretofore been adjudged by this Court to be incompetent from want of understanding to manage her affairs by reason of mental and physical weakness on account of disease, and that W. M. Jolly has heretofore been appointed by this Court and is now acting as the general guardian of said incompetent.

'2. That the petitioner herein, H. K. Perry, and his wife, Florence Johnson Perry, are the owners as tenants by the entirety of the following described land lying and being in Dunn Township, Franklin County, North Carolina, the same having been conveyed to them by deed dated January 22, 1935, and recorded in Book 320 at page 590, Franklin County Registry, the same being more particularly described as follows: (description omitted)

'3. That the petitioner is now of the age of (75) years, and by reason of his advanced years is physically infirm and unable to do any manual labor, but is otherwise healthy and mentally alert, and can anticipate many years of life; that said Florence Johnson Perry, wife of the petitioner, is in very poor physical and mental health, she having only recently required hospital care and treatment and now needs constant care and attention, which petitioner himself is unable to render personally, and the expense of her maintenance and care, and living expenses of the petitioner are such that the income from the rental of the crops on the lands of the petitioner and his wife is not sufficient to pay all such expenses, together with the upkeep of the croplands and the maintenance of the buildings, and the taxes assessed upon the land; that the land of the petitioner and his wife is deteriorating and the buildings thereon are in need of repairs and modernization; that farm land is now generally selling at high prices; that the petitioner verily believes and therefore avers that it is for the best interests of both himself and the estate of his wife for said lands to be sold in order that the petitioner may be able to provide more adequately for the maintenance and support of himself and his wife. That the petitioner has been offered the sum of $45,000.00 for said land, and the petitioner believes that the said sum is the full, fair and adequate value of said land, and that it would be for the best interest of the petitioner and his wife for said lands to be sold as aforesaid, and the proceeds of the sale used for the support and maintenance of the petitioner and his wife.'

The guardian answered (date not given) denying paragraph three of the petition and further alleging the described land was worth $60,000.00, and that the income from the land and from other sources rendered unnecessary the proposed sale. However, the guardian, by leave of the court, filed an amended answer which, admitting other essential facts, contained the following:

'2. That Mrs. Hilda P. Pearce, a daughter of plaintiff and defendant's ward, and her husband, Marshall E. Pearce, have offered the sum of $45,000.00 for said land, subject to the life estate of the plaintiff and defendant's ward in and to the main dwelling house, which this defendant, after further information and belief and in view of the condition of the farm buildings thereon, considers to be a fair and adequate value for said land, and further believes that it would be for the best interest of this defendant's ward for said lands to be sold for the aforesaid price at private sale; that the net proceeds of said sale be divided equally, that is one-half to plaintiff and one-half to this defendant as Guardian of Florence Johnson Perry, to the end that the one-half paid to this defendant shall be used for the support and maintenance of this defendant's ward as by law provided.'

Three disinterested freeholders filed a joint affidavit stating the proposed private sale at $45,000.00, subject to the life estate in the residence and two acres surrounding it was a 'full and fair value of said lands.' The clerk entered the following order:

'This cause coming on to be heard, and being heard before Honorable John W. King, Clerk of Superior Court of Franklin County, North Carolina, upon the verified petition, answer and amended answer, affidavit of three disinterested freeholders, and other satisfactory proof, and it appearing to the Court and being found as facts as follows:

'1. That the facts set forth in the petition and amended answer herein are true; and that it will be to the best interest of defendant's ward, Florence Johnson Perry, incompetent, for the land described in the petition to be sold at private sale to Mrs. Hilda P. Pearce and husband, Marshall E. Pearce, for the sum of $45,000.00 cash, reserving a life estate unto H. K. Perry and wife, Florence Johnson Perry, and the survivor of them, in and to the main dwelling and two acres surrounding the same for yard, with one-half of the said proceeds of said sale to be paid to the petitioner H. K. Perry and one-half of the net proceeds of said sale to be paid to W. M. Jolly, Guardian of Florence Johnson Perry, incompetent, to be used by said guardian for the support and maintenance of his said ward in a manner provided by law.

'2. That W. M. Jolly, Guardian of Florence Johnson Perry, has no funds or property in his hands belonging to his ward, who has been committed to the Dorothea Dix State Hospital in Raleigh, and it is necessary that funds be made available to said guardian for the payment of the support and maintenance of said Florence Johnson Perry, and that it is most advantageous to said ward and her interest will be materially promoted by a sale of the said lands at the price of $45,000.00 cash as aforesaid.

'NOW, THEREFORE, it is ordered, adjudged and decreed that Hill Yarborough and E. F. Yarborough be, and they are hereby appointed commissioners to make a private sale to Mrs. Hilda P. Pearce and husband, Marshall E. Pearce, of the lands described in the petition, subject to the reservation of life estates in the main dwelling house situate thereon and 2 acres of land surrounding same unto said H. K. Perry and wife Florence Johnson Perry, and the survivor of them, for the price of $45,000.00 cash, and that said commissioners shall report their sale to this court for confirmation and further proceedings as provided by law.

'It is further ordered that out of the proceeds derived from said sale said commissioners shall pay the costs and expenses of said sale and this proceeding, and one-half of the net proceeds of said sale shall be paid to W. M. Jolly, Guardian of Florence Johnson Perry, incompetent, and one-half of said net proceeds shall be paid to the said petitioner or such person as designated by him.'

The Commissioners reported the private sale as follows:

'TO HONORABLE JOHN W. KING, CLERK OF SUPERIOR COURT OF FRANKLIN COUNTY, NORTH CAROLINA:

'The undersigned, Hill Yarborough and E. F. Yarborough, Commissioners appointed with herein to sell at private sale the lands described in the petition, hereby report to the court that, pursuant to said Order, they have agreed, subject to the confirmation of the court and to the provision of law regarding an increased or upset bid, to sell to Hilda P. Pearce and husband Marshall E. Pearce at the price of $45,000.00 cash, the lands described in the petition herein, and containing 120.5 acres, more or less, subject to the reservation of life estates in the main dwelling house situate thereon and 2 acres of land surrounding same unto said H. K. Perry and wife Florence Johnson Perry, and further subject to the rental contract for the year 1963.

'That your Commissioners verily believe, and so aver, that said price is full, fair and adequate, and is as much as if not more than, they could reasonably expect to obtain for said land by a sale at public auction, and that said sale would be for the best interest of all parties concerned.

'WHEREFORE, your commissioners respectfully recommend to the Court that the matter be allowed to remain open for 10 days as by law provided, and that if no advance or upset bid is filed with the Court, that the sale hereby reported be confirmed.

'This the 9th day of October, 1962.'

The Clerk entered the following confirmatory decree:

'This cause coming on to be heard, and being heard upon the Report of Sale filed herein on 9 October 1962 by Hill Yarborough and E. F. Yarborough, Commissioners, and it appearing to the Court and being found as facts:

'1. That the aforesaid Commissioners reported to this Court on 9 October 1962 a sale of the lands described in the Petition to Hilda P. Pearce and husband, Marshall E. Pearce, for the price of Forty-five Thousand and no/100 Dollars ($45,000.00), cash, subject to the reservation of life estates in the main dwelling house situate thereon and two (2) acres of land surrounding same unto said H. K. Perry and wife, Florence Johnson Perry, and further subject to the rental contract for the year 1963.

'2. That Florence Johnson Perry is the wife of H. K. Perry, the petitioner, and that said Florence Johnson Perry is mentally incompetent, and it is necessary and desirable that said lands be sold in order to provide funds for the support and maintenance of said Florence Johnson Perry.

'3. That it appears...