Sledge v. Elliott

• Decision Date: 30 April 1895
• Court: North Carolina Supreme Court
• Parties: SLEDGE. v. ELLIOTT et al.

21 S.E. 797

116 N.C. 712

SLEDGE.

v.ELLIOTT et al.

Supreme Court of North Carolina.

April 30, 1895.

Sale by Administrator — Order of Court — Terms of Sale—Collateral Attack—Truth of Recitals—Presumption.

1. Under Rev. Code, e. 46, § 44, providing that the property of a decedent, in case of insufficiency of assets to pay debts, may be sold by the administrator on obtaining a license for the sale from the court, the court granted an administrator "license" to sell all the real estate described in his petition, and set out the terms of sale. A subsequent order, without setting out the terms of sale, granted the administrator "leave to dispose of" one of the tracts described in the original order. Held, that the last order related back to the original order for terms of sale, and a sale made thereunder was valid.

2. Where a statute vested a court with power to grant an administrator "license" to sell real estate to procure assets, an order granting one license to sell "if, in the settlement of the estate, it would be found necessary, " is not void as being a conditional judgment, or as attempting to vest the administrator with judicial power.

3. After 30 years, the recital in a decree of court that service had been made on all the parties to the action, some of whom were minors, will be presumed true, on collateral attack; it appearing that the guardian ad litem of the minors was clerk of court, and that rights of third parties have intervened.

Appeal from superior court, McDowell county; Shuford, Judge.

Action by M. L. Sledge against J. S. Elliott and others for the possession of land. From a judgment for plaintiff, defendants appeal. Affirmed.

E. J. Justice, for appellants.

Shepherd & Busbee, Battle & Mordecai, and English & Morris, for appellee.

AVERY, J. The right of the plaintiff to recover in the action for title and possession of a lot was made to depend upon the question whether a record of an administrator's petition for sale for assets, with the decree and sale under which the plaintiff claimed title, were open to attack, and were shown to be invalid, and subject to collateral impeachment by the heirs at law of the decedent. The petition was filed in the court of pleas and quarter sessions of McDowell county at the fall term, 1864, in accordance with the provisions of Rev. Code, c. 46, § 47 et seq., and not under the act of 1868 (Battles' Revisal, c. 45, § 61 et seq.). The form of the petition is verbatim, in all material respects, that laid down in Eaton's Forms (p. 529), and universally used by the profession at that time. At the spring term, 1865, of the court, there was an order for the sale of several other tracts of land, and the terms of sale were prescribed therein. Under a proper construction of this order, entered at the ensuing fall term, in connection with that referred to above, it is manifest that the lot in controversy was to be sold, if at all, upon the terms prescribed in the former order for the sale of the real estate generally. It would be sticking in the bark to hold otherwise, when in fact the terms adopted were precisely those prescribed as to the sale of the other property, and no possible jeopardy to the rights of the defendants could have resulted therefrom. The statute (Rev. Code, c. 46, § 44) ¹ from which the court derived its authority, permitted the granting of a "license" to sell the real estate, and accordingly the first order also declared that the administrators of Elliott should have "license"—not that they should be required—to sell certain other property. The subsequent order that they "should have leave to dispose of the town lot described in the petition, if in the settlement of the estate it should be found necessary, " was not, in our opinion, what is termed a conditional judgment, or a judgment void as an attempt to vest in the administrators judicial power. The court unquestionably granted leave to sell the town lot just as it had given its sanction in advance to the sale of the other land for assets. If, after obtaining the license, by reason of finding some personal assets, of which they previously had no knowledge, or because of some claim against the estate supposed to be just proving invalid, the approximate estimate of indebtedness had proved incorrect, it will not be contended that the administrators would not have been authorized to desist in their discretion from selling before disposing of even all the tracts described in the first order of the court. They were empowered, not compelled, to sell; and the proviso in the second order gave them no new authority, but was merely in affirmance, not only of what was their discretionary power, but of their duty as ministerial officers of the court, acting for the best interest of the heirs as well as the creditors. The statute authorizing the sale of land for assets is in derogation of common...