Smith v. Fort

• Decision Date: 10 March 1890
• Parties: SMITH et al. v. FORT et al.
• Court: North Carolina Supreme Court

10 S.E. 914

105 N.C. 446

SMITH et al. v. FORT et al.

Supreme Court of North Carolina

March 10, 1890

Appeal from superior court, Wayne county; WHITAKER, Judge.

A deed of land sold by a commissioner on order of court recited the substance of the order of sale, that a sale was made, the order of confirmation, and that the deed was made in consideration of the sum bid for the land. Held, that the failure to state the receipt of the price was not such an irregularity as to authorize a motion, after the final judgment, to set aside the proceedings.

W. C Munroe and Aycock & Daniels, for appellants.

Faircloth & Allen, for appellees.

MERRIMON C.J.

In his life-time, John Coley, now deceased, contracted in writing to sell and convey to Thomas R. Smith, likewise deceased, for a stipulated price, the tract of land specified in the complaint. The said Smith died, leaving a last will and testament, which was duly proven, and the plaintiff W. F Gardner qualified as executor thereof. The said Coley also died intestate, and the defendant W. B. Fort was duly appointed administrator of his estate. The contract of sale above mentioned was not executed at the time of the death of said testator and said intestate. This action was brought in the superior court of the county of Wayne by the plaintiffs devisees of said will, and the executor thereof, against the heirs at law and said administrator of said intestate, to compel specific performance of said contract. At spring term of 1876, of the court mentioned a judgment was rendered in favor of the plaintiffs for $2,099, with the interest from January 20, 1876, for certain rents of part of the land received by the said administrator, and likewise judgment was also then rendered in favor of the defendant administrator against the said executor plaintiff for $2,004.34, with interest from January 30, 1876, balance of purchase money of the land. It was then further adjudged that the land be sold subject to homestead, to pay the last-mentioned judgment, and John R. Smith was appointed commissioner to make sale thereof. The following is a copy of so much of the judgment as directs such sale: "It is further adjudged that the land described in the pleadings be condemned and sold subject to the homestead thereon, for the satisfaction of the above judgment, on a credit of six months, after thirty days' advertisement at four public places in Wayne county, to be sold at the court-house door in Goldsboro, note and security for the purchase money at 8 per cent. interest. It is further ordered that John R. Smith be appointed commissioner to sell said land on the above terms, and report his proceedings to his court." At the fall term of 1876 of the court, the said commissioner reported that he had made sale of the land as follows: "The commissioner having reported that the land described in the pleadings sold for a just price, and there being no exceptions to the sale, the same is confirmed. It is further ordered that on payment of the purchase money the commissioner, John R. Smith, make title in fee for the same, subject to the homestead." Afterwards, on the 14th of November, 1876, the said commissioner executed to the purchaser of the land a deed therefor, and the following is as much thereof as need be repeated: "Whereas, John R. Smith, as commissioner, sold the lands hereinafter described, on the 7th day of August, 1876, to W. A. Deans, for three thousand and fifty dollars, in pursuance of an order made at spring term, 1876, of Wayne superior court, in the action of Elizabeth John Smith and others vs. W. B. Fort and others; and whereas, at fall term, 1876, it was ordered therein that said commissioner, upon payment of the purchase money, make title to said purchaser for the premises, subject to the homestead thereon: therefore this deed made by John R. Smith, commissioner, to William A. Deans, both of Wayne county, witnesseth that the said John R. Smith, in consideration of three thousand and fifty dollars, have sold and hereby conveys to the said W. A. Deans, his heirs and assigns," etc. Afterwards, at fall term, 1877, the court rendered judgment, the material parts whereof are as follows: "This action coming on for final judgment, and it appearing that John R. Smith has been duly appointed a guardian of the plaintiffs Elizabeth John Smith, Richard Greene Smith, Polly Ann Smith, and Amy Lee Smith, it is ordered that the amount of the judgment heretofore rendered in favor of said plaintiffs against the defendant Wiley B. Fort, administrator of said John Coley, to wit, the sum of two thousand and ninety-nine dollars and twenty-one cents, ($2,099.21,) with interest from January 30, 1876, be paid over to John R. Smith, as guardian of said Elizabeth John Smith, Richard Greene Smith, Polly Ann Smith, and Amy Lee Smith. It is further ordered that said John R. Smith, guardian, pay to A. K. Smedes, referee, out of said money, the sum of twenty-five dollars, heretofore ordered to be paid to him by the said plaintiffs. It is further ordered that John R. Smith, heretofore appointed commissioner to sell the land described in the pleadings, and make title, pay out of the proceeds of sale of said land the costs of this action, and to Wiley B. Fort, administrator of John Coley, the sum of two thousand and four dollars and thirty four cents, ($2,004.34,) with interest from the 30th of January, 1876. It is further ordered that said John R. Smith, commissioner, be allowed the sum of fifty dollars for selling said land, making title, etc., and that he retain the same out of said proceeds of sale. It is further ordered that the commissioner, John R. Smith, pay to Wm. T. Dortch out of the balance of said fund the sum of one hundred dollars for professional services rendered to Wm. T. Gardner, executor of said Thos. R. Smith, and that he pay over the remainder to Wm. T. Yelverton, clerk of this court, to be disposed of as the court shall hereafter order, unless said W. T. Gardner, executor of said Thos. R. Smith, shall enter into bond, with good security, to dispose of said fund according to law, and, in the event of the said Gardner giving said bond, that said fund be paid to him."

On the 17th of November, 1876, the said Deans, the purchaser of the land, and his wife, conveyed the land so purchased to the said John R. Smith in fee; and afterwards the latter and his wife conveyed a part of the said land to the plaintiffs devisees, subject to the homestead of the testator named. Afterwards the said Smith sold and conveyed the...