Rodman v. Stillman
| Decision Date | 19 November 1941 |
| Docket Number | 98. |
| Citation | 17 S.E.2d 336,220 N.C. 361 |
| Parties | RODMAN v. STILLMAN et al. |
| Court | North Carolina Supreme Court |
Special proceeding to sell land to make assets to pay debts.
The clerk of Superior Court, pursuant to hearing before him found facts which were adopted by Judge of Superior Court on appeal from clerk, as follows:
(1) At a regular term of the Superior Court of Washington County which convened on 20 October, 1930, in an action entitled Clyde M. McCallum and E. Leigh Winslow, trading as Plymouth Wholesale Company, as plaintiffs, v. J. A. Stillman, as defendant, judgment was rendered on 25 October, 1930, in favor of plaintiffs and against defendant for the sum of $341.24, together with interest and costs, on which judgment J. A. Stillman paid only the sum of $75 on 1 May 1931.
(2) J. A. Stillman died on 25 June, 1933, possessed of some personal property, which has been consumed by and disposed of in support of his widow and children, and seized of the land sought to be sold in this proceeding.
(3) Letters of administration upon the estate of J. A. Stillman were duly issued to W. Blount Rodman on 15 March 1940.
(4) On 15 March, 1940, the said judgment of Plymouth Wholesale Company was presented to the administrator as a claim against the estate for payment. Following investigation of all the facts pertaining thereto and after interviewing Mrs. Eloise Stillman, the widow, and ascertaining all that could be learned about said judgment, the administrator determined and, on said date, admitted that same, less credit above stated, is a valid claim against the said estate, and thereafter on 18 October, 1940, instituted this proceeding to sell land to pay debts of the estate of J. A. Stillman, including said judgment.
The widow and heirs at law of J. A. Stillman, in their answer filed 31 October, 1940, plead laches and the ten-year statute of limitations in bar of said judgment both as a debt of the estate and as a lien on land sought to be sold.
Upon the facts found, the clerk being of opinion that said judgment is a debt of the estate of J. A. Stillman, and, from the date of its rendition, a lien on the lands of J. A. Stillman, and is not barred by the statute of limitations, either as a debt or as to its lien, so adjudged, and, as prayed, ordered the land sold subject to the dower of defendant, Mrs. Eloise Stillman, widow of J. A. Stillman, to be allotted in this proceeding.
The record further shows that on petition filed it is also alleged that, though no claim therefor has been presented to or filed with the administrator, there are of record in office of register of deeds of Washington County, (1) a mortgage deed from J. A. Stillman and wife to Sarah A. Spruill, registered 24 October, 1930, and (2) a deed of trust from J. A. Stillman to V. H. Kellum, Trustee, for benefit of M. Grace Woodhouse, dated 8 October, 1932, registered 20 October, 1932, each purporting to convey the land or a part of the land described in the petition as security for indebtedness (1) due Sarah A. Spruill, and (2) due M. Grace Woodhouse as described in said mortgage deed and said deed of trust, respectively; and it is alleged on information and belief that each has been paid and should, therefore, be cancelled. In this connection Sarah A. Spruill, V. H. Kellum, Trustee, and M. Grace Woodhouse are defendants, but file no answer.
Defendant Eloise Stillman in answer filed asserts ownership of the mortgage deed given to Sarah A. Spruill, to which petitioner in reply pleads ten-year statute of limitations.
Upon facts found as to the mortgage deed, and in default of answer by V. H. Kellum, Trustee, and M. Grace Woodhouse, as to deed of trust, clerk orders each cancelled.
The evidence offered by petitioner upon which the finding of fact numbered 4 hereinabove rests comes from the testimony of W. Blount Rodman, briefly stated, as follows: That he qualified as administrator of J. A. Stillman at the instance and solicitation of the attorney for Clyde McCallum and E. Leigh Winslow, judgment creditors; that the attorney advised him that the reason for his interest was that no personal representative had qualified and it was necessary for the estate to be administered in order that creditors might make collection; that he qualified in order to settle the estate in all respects as provided by law; that after qualifying as administrator, in the forenoon of 15 March, 1940, he with his attorney went in the afternoon to the home and store of Mrs. Eloise Stillman, the widow; that they took with them memorandum showing the existence of the uncancelled deed of trust and mortgage deed hereinabove described, and of the judgment in favor of Clyde McCallum and E. Leigh Winslow against J. A. Stillman; that as to the judgment, Mrs. Eloise Stillman stated that she knew of its existence and of the fact that it had not been paid, except for $75 paid thereon 1 May, 1931; that she assigned as one of the reasons for its nonpayment the fact that she had heard from some source that the judgment creditors had gone into bankruptcy, and, therefore, did not think it would have to be paid; that the matter of her borrowing money with which to pay the judgment was discussed between her, the administrator, and his attorney, the latter insisting that she employ an attorney to represent and advise her as to her rights in the matter; and that following his investigation, he, the administrator, admitted the judgment as a claim against the estate of J. A. Stillman and a lien upon his land, on 15 March, 1940.
Defendant offered no evidence.
Upon appeal from the clerk of the Superior Court by all of the defendants other than Sarah A. Spruill, V. H. Kellum Trustee, and M. Grace Woodhouse, Stevens, Judge Presiding at July Term 1941, of Superior Court of Washington County, finding all the facts to be as found by the clerk, "except that it is found that the lien of the judgment therein set out expired 10 years from the rendition of said judgment, although same is a good and valid claim against the estate of J. A. Stillman", affirmed the judgment of the clerk, except as to the lien of the judgment therein set out, and ordered...
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