Shute v. Austin

• Decision Date: 20 April 1897
• Court: North Carolina Supreme Court
• Parties: SHUTE et al. v. AUSTIN et al.

27 S.E. 90

120 N.C. 440

SHUTE et al.

v.AUSTIN et al.

Supreme Court of North Carolina.

April 20, 1897.

Sale of Decedent's Land—Action for Confirmation—Purchase by Executor—Pleadings.

1. Executors have no right of action against the devisees to confirm a sale of land made to third persons under a power in the will, without an order of court.

2. A purchase of land by an executor at his own sale, directly or indirectly, however fair, is fraudulent in law.

Appeal from superior court, Union county; Norwood, Judge.

Action by H. A. Shute and others, executors of John Shute, deceased, against J. W. Austin and others, to confirm a sale of land made under a power in the will. From a judgment of confirmation, defendants appeal. Reversed.

Adams & Jerome, for appellants.

Shepherd & Busbee, for appellees.

FURCHES, J. On the 17th day of September, 1S96, John Shute died in Union county, leaving a last will and testament, which was duly admitted to probate; and the plaintiffs, who were named as executors therein, qualified, and undertook the administration of the testator's estate and the execution of said will. The will directed the sale of the testator's real estate, and an equal distribution of the proceeds arising therefrom among the defendants, Mary A. Austin, Amanda Brewer, Florence Houston, Ellie J. Wilson, Eva B. Shute, and S. R. Shute. Said executors (the plaintiffs) were fully empowered and authorized by the will to sell and convey all of the testator's land; and on the 21st day of September, 1896, after due advertisement, they proceeded to sell the same, when S. J. Welsh bid off two of the tracts, W. S. Lee three of the tracts, and W. C. Heath two of the tracts, so sold. The plaintiffs then commenced this proceeding in the superior court of Union county, before the clerk; and in their complaint they allege the facts above stated, and also allege that the sale was fair and open, and that the land brought a fair price, and that the purchasers were ready, able, and willing to pay for the land upon the court's confirming the sales, and they ask the court to make an order confirming the same. The defendants answer, and admit that the parties named as purchasers bid off the land; but they allege that they bid them off for the plaintiffs, who are the real purchasers; and they admit that all said lands, except two tracts (the "Correll Lot" and the "Big Survey Tract"), brought a fair price. But the defendants deny that the court has any jurisdiction of the case; deny that the court has any power to confirm a sale made under the power...