Peterson v. Vann

• Decision Date: 30 June 1880
• Citation: 83 N.C. 118
• Court: North Carolina Supreme Court
• Parties: WILLIAMS. PETERSON, Adm'r, and others v. JOHN VANN, Trustee, and others.

83 N.C. 118

WILLIAMS. PETERSON, Adm'r, and others

v.JOHN VANN, Trustee, and others.

Supreme Court of North Carolina.

June Term, 1880.

MOTION to set aside a judgment and order of sale, heard at January Special Term, 1880, of SAMPSON Superior Court, before Gilmer, J.

The plaintiff filed his petition in the court of pleas and quarter sessions of Sampson county at November term, 1866, for a license to sell the land described in the petition to pay the debts of his intestate; and on this petition a summons was issued returnable to May term, 1867, against John Vann, styled agent of Mary Boney, and against the heirs at law of Chester R. Vann, without description of them by name and in this respect the summons pursued the petition. Upon the petition thus begun, the following proceedings were had:

At May term, 1867, the summons was returned “executed” and at the same term, W. A. Matthis, the clerk, was appointed guardian ad litem to the heirs at law of the plaintiff's intestate, and he accepted service of his appointment.

At August term, 1867, John Vann filed an answer, wherein he set up that the land, though once the property of the intestate, was sold under execution for his debts in 1862, when he purchased the same and took the sheriff's deed therefor, and afterwards, in 1864, conveyed it to his grandchildren, the heirs at law of Chester R. Vann, and by this means he insisted the intestate had no interest or title liable to be sold for his debts. And at the same term of the court, Matthis, guardian as aforesaid, filed an answer, referring to and relying on the matters of defence contained in the answer of John Vann.

At said August term, 1867, an entry was made on the record in these words: “Answer filed; replication; ordered by the court that issues be submitted to a jury.” At November term, 1867, the cause is marked “continued.” At February term, 1868, there is this entry: “Order of sale, for decree see minutes.” At May term, 1868, this entry: “Report of sale confirmed and decree for title.” At fall term, 1869, of the superior court, the cause was entered on the docket of that court and there was this order: “Judgment against petitioner for costs,” and the cause was dropped from the docket.

After these proceedings, the heirs at law of the intestate, claiming as grantees of their grandfather, John Vann, on notice to the plaintiff moved before the clerk to set aside the order of sale of the land at February term, 1868, of the county court and also the order of confirmation and for title to the purchaser at May term of the same court; and the same being denied, on appeal to the superior court, the judge remanded the cause to the probate court for additional parties.

In pursuance of the order remanding the cause for new parties, after notice to the petitioner, to the heirs of A. M. Matthis and to William Sutton and wife, the present claimants of the land under the administrator's sale, the probate court overruled the motion to set aside the decree of sale and order of confirmation and for title; and on the appeal to the superior court at said January special term, 1880, the judgment of the probate court was affirmed, and the defendants appealed.

Mr. D. J. Devane, for plaintiffs .

Mr. J. L. Stewart, for defendants .

DILLARD, J., after stating the case.

Upon this appeal, the error assigned is the affirmance by the superior court of the refusal of the probate court on the facts above recited to set aside the decree of sale, order of confirmation and for title in the county court at February and May terms, 1868.

The late court of pleas and quarter sessions, by the act of 1846, (Rev. Code, ch. 46, § 44,) was clothed with a jurisdiction to order the sale of land of deceased debtors for payment of their debts on the petition of their personal representatives, to be exercised in the mode and to the extent limited in the statute conferring the jurisdiction. It was a quasi equitable jurisdiction, created for a special purpose and with enumerated powers, and hence the courts settled it, that upon a decree of sale, confirmation thereof and an order to collect the purchase money and make title, the jurisdiction conferred was...