Shackelford v. Miller

Decision Date31 October 1884
Citation91 N.C. 181
CourtNorth Carolina Supreme Court
PartiesM. CATHARINE SHACKELFORD and others v. J. K. MILLER and others.
OPINION TEXT STARTS HERE

MOTION to set aside a judgment, &c., heard at Spring Term, 1884, of ONSLOW Superior Court, before Shepherd, J.

It is alleged that the defendants Miller and wife, on the 15th of December, 1875, executed a mortgage to C. O. Foy, to secure a certain debt, and on the 12th of November, 1878, they executed a second mortgage on the same land to L. W. Humphrey to secure a debt therein named, and on the 1st of January, 1881, the said Humphrey assigned the notes so secured to John W. Shackelford, who died in January, 1883, and the plaintiff qualified as executrix of his will. She afterward married George Brooks. Foy died and the defendant West qualified as administrator.

An action was brought by L. W. Humphrey and J. W. Shackelford against J. K. Miller and wife, to foreclose the mortgage made to Humphrey, and in this action it was alleged that Humphrey had assigned the mortgage debt, due him by Miller, to J. W. Shackelford.

At a subsequent term of the court the death of Shackelford was suggested, and the plaintiff, his widow and executrix, was made a party and filed an amended complaint.

At spring term, 1883, a decree was made adjudging that the defendant West, administrator of C. O. Foy, recover the debt due his intestate; that the plaintiff recover that due her testator, and that the defendants Miller and others be foreclosed of all equity of redemption in the land. And it was further ordered that A. C. Huggins, as commissioner, advertise and sell the land if the indebtedness was not paid as directed.

At fall term, 1883, the commissioner made report of sale and the same was confirmed, and title directed to be made to L. W. Humphrey (who bid off the land) upon his paying the purchase money--$4,336. This decree was signed by the judge, as of the said term of Onslow superior court, but was in fact signed about two weeks after said term had expired, and at Carteret superior court; and this was done by consent of all the parties or their attorneys.

On January 5, 1884, Humphrey assigned his bid to one Stephens, and directed the commissioner in writing to make title to him. Stephens paid the purchase money on the 10th of the month in cash, except the sum of $2,192.45, which he paid in a note executed by John W. Shackelford to said Humphrey and assigned to Stephens; and the sum of $162,91, which he paid in a note against Foy. The commissioner made the settlement in this way, under the belief that it was agreeable to all parties concerned, and executed a deed to Stephens conveying the property.

A restraining order to prevent the commissioner from executing the deed was obtained at the instance of the plaintiff executrix, but it was not served until after the deed was delivered. And upon the hearing of the matter, it appeared to the judge that the commissioner had collected the purchase money and had it in hand subject to the order of the court, and thereupon the proceeding was dismissed.

Afterwards, the plaintiff executrix caused notices to be issued to all the parties to the original action, and also upon Stephens and the said commissioner and W. H. Henderson, to show cause why the motion she now makes shall not be granted; that is, to set aside and vacate the judgments and decrees made at the spring and fall terms, 1883, of Onslow superior court. His Honor, having found as a fact that the parties and the attorneys acted in entire good faith in consenting to the signing of the decree at Carteret; that the sale of the land was conducted fairly, and the price reasonable and just; that the whole of the purchase money was paid to the commissioner upon his notifying Stephens that the note on Shackelford was not satisfactory to his executrix, and that the same was in the hands of the commissioner subject to the order of the court, declined to grant the motion.

The plaintiff further moved that she be declared entitled to dower in the lands of which her husband died seized, and the lien in favor of Foy's estate be discharged out of the personal estate of her testator. And upon this matter the court found that said Shackelford left no real estate, except his interest as follows:

That subsequent to the execution of the mortgage by Miller to Humphrey, said Shackelford purchased of said Miller his equity of redemption in the property sold under the decree herein, and obtained a proper conveyance therefor; that afterwards said Humphrey assigned the notes due him by Miller to said Shackelford; that instead of redeeming said land by paying the Foy debt, the said Shackelford and wife became parties to the proceedings under which the land was sold, and that the plaintiff, as executrix, was made a party plaintiff, and that the land was sold according to the prayer of the amended complaint to pay the indebtedness secured by mortgage as stated therein, the land not bringing enough to pay the same. The court, being of the opinion that the equity of redemption had been foreclosed by the decrees, and at the instance of the plaintiff, and having declined to set aside said decrees, adjudged that the motion be refused, and the commissioner was directed to pay the purchase money to the executrix or other personal representative of said Shackelford, according to the decree.

The plaintiff further moved that the deed made by the commissioner be declared inoperative and void, and that Stephens be adjudged to have bought the land with notice of her equity, and declared a trustee for her benefit. It was conceded that Humphrey bought the land under an agreement to re-convey to plaintiff upon certain conditions, but there was conflicting testimony as to whether the conditions were duly performed by her, and whether Stephens had notice of said agreement before he purchased of Humphrey.

The court being of the opinion that a motion in the cause was not the proper remedy to convert the said Stephens into a trustee, declined to pass on the above questions of fact, and refused the motion.

Judgment was rendered according to the above rulings, and the plaintiff appealed.

Mr. S. W. Isler, for plaintiff .

Messrs. Faircloth & Allen, for defendant .

MERRIMON, J.

In our judgment, no one of the appellant's exceptions can be sustained.

1. The decree made at the fall term, 1883, of the superior...

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17 cases
  • Edmundson v. Edmundson
    • United States
    • North Carolina Supreme Court
    • November 4, 1942
    ...sign a judgment affecting any matter within such jurisdiction. Hervey v. Edmunds, 68 N.C. 243; Harrell v. Peebles, supra; Shackelford v. Miller, supra; McDowell v. McDowell, 92 N.C. 227; Coates Wilkes, 94 N.C. 174; Bynum v. Powe, supra; Fertilizer Co. v. Taylor, 112 N.C. 141, 17 S.E. 69; Be......
  • State v. Trent
    • United States
    • North Carolina Supreme Court
    • July 1, 2005
    ...with consent of the parties); Hardin v. Ray, 89 N.C. 364, 365 (1883) (holding judgment signed out-of-term not valid); Shackelford v. Miller, 91 N.C. 181, 185-86 (1884) (holding decree signed out-of-term and out-of-county is valid with consent of parties or their counsels); Coates v. Wilkes,......
  • State v. Trent
    • United States
    • North Carolina Supreme Court
    • July 1, 2005
    ...with consent of the parties); Hardin v. Ray, 89 N.C. 364, 365 (1883) (holding judgment signed out-of-term not valid); Shackelford v. Miller, 91 N.C. 181, 185-86 (1884) (holding decree signed out-of-term and out-of-county is valid with consent of parties or their counsels); Coates v. Wilkes,......
  • Lee v. Giles
    • United States
    • North Carolina Supreme Court
    • April 2, 1913
    ...of her natural life. Tripp v. Nobles, 136 N.C. 99, 48 S.E. 675, 67 L. R. A. 449; Perkins v. Brinkley, 133 N.C. 86, 45 S.E. 465; Shackelford v. Miller, 91 N.C. 181; Simonton v. Houston, 78 N.C. 408. This being correct position, the petition and decree for dower did not amount, in form or eff......
  • Request a trial to view additional results

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