Shearin v. Hunter

• Decision Date: 31 January 1875
• Citation: 72 N.C. 493
• Court: North Carolina Supreme Court
• Parties: ZACHARIAH SHEARIN and others v. HENRY B. HUNTER, Administrator de bonis non.

72 N.C. 493

ZACHARIAH SHEARIN and others

v.HENRY B. HUNTER, Administrator de bonis non.

Supreme Court of North Carolina.

January Term, 1875.

It is the plain duty of a Probate Judge, to refuse to confirm a sale of land by an administrator, under a decree of his Court, when it appears that the land was bid off at such sale, for the benefit of the administrator.

( Hyman v. Jernigan, 65 N. C. Rep. 96, cited and approved.)

This was a PETITION to set aside a decree of sale, made by the Probate Court, upon the petition of Zachariah E. Shearin, administrator of John P. Shearin.

The facts in the case are as follows: On the 29th of March, 1872, Zachariah E. Shearin filed a petition in the Probate Court of Warren county, for the sale of a tract of land, of which his intestate died seized, for the payment of his debts. On the 14th of November, a decree was made for the sale of the tract of land which decree was afterwards twice renewed with slight modifications. Afterwards, to-wit, on the 22d day of March, 1874, no sale having taken place and Zachariah E. Shearin having been removed, and the defendant Henry B. Hnnter, appointed administrator de bonis non, a decree was made for the sale of the land by the defendant, at auction, on a credit of twelve months, one hundred and fifty dollars, to be paid in cash, and the balance to be secured by bond with approved security.

The sale was duly advertised according to law, and the land was sold on the 6th day of April, 1874, H. A. Foote became the purchaser for $1,410.

At the time of the sale, the defendant requested H. A. Foote to see that the land did not sell for less than $1500, telling him that if the land was knocked down to him, he would take the bid off his handa. It was understood after the sale, and admitted by the defendant, that defendant was the real purchaser, but a title was made to Foote, as defendant alleged, to prevent complication, and Foote was to convey the land to the defendant.

The plaintiff's in the present action, the heirs of the intestate of the defendant, filed a petition to set aside the decree of confirmation of this sale on several gronnds, among others, and chiefly because, as they allege, H. A. Foote bought the land as the agent of defendant.

The petition was heard before the Probate Judge and dismissed at the cost of the petitioners, and an appeal taken to the Superior Court.

The case was heard on appeal before his Honor Judge Watts, at Chambers, and the judgment of the Probate Court affirmed. From this judgment the plaintiff's appealed.

Busbee & Busbee, for petitioners .

No counsel contra in this Court .

SETTLE, J.

The defendant as administrator de bonis non on the estate of John P. Shearin, after petition and decree to sell the lands of his intestate for the payment of debts, exposed the same to sale on the 6th of April, 1874, when Mr. Foote bid off the same, (819 acres), at the price of...