Smith v. Huffman

• Decision Date: 12 May 1903
• Citation: 44 S.E. 113,132 N.C. 600
• Court: North Carolina Supreme Court
• Parties: SMITH et al. v. HUFFMAN et al.

44 S.E. 113

132 N.C. 600

SMITH et al.

v.HUFFMAN et al.

Supreme Court of North Carolina.

May 12, 1903.

JUDGMENT—RES JUDICATA—PROBATE DECREE —SALE OF DECEDENT'S LAND—COLLATERAL ATTACK.

1. An order confirming the sale in probate court of a decedent's realty recited that notice had been issued to all defendants to show cause on December 23d why the sale should not be confirmed, except to two, as to Whom notice was issued to show cause on the 26th; that these last two filed an answer, and that the hearing was had on the 24th by consent; that "from the report of administrators, and the answer of said defendants appearing to be reasonable, and no sufficient cause being shown why said sale should not be confirmed, " it was ordered confirmed. Held, that the defendants so answering could not collaterally attack the decree of confirmation.

¶ 1. See Executors and Administrators, vol. 22, Cent. Dig. §§ 1535, 1554.

Appeal from Superior Court, Burke County; Justice, Judge.

Action by John Smith and others against Amos Huffman and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

John T. Perkins, for appellants.

Avery & Ervin and A. C. Avery, for appellees.

CONNOR, J. In 1878 David Vanhorn and wife executed a deed for the land sued for in this action to Nancy Smith, a married woman, mother of the plaintiff. Vanhorn died intestate in 1884. In 1885 his administrator filed a petition, before the clerk of the superior court of Burke county, against the heirs at law of David Vanhorn (including Mrs. Nancy Smith), to sell intestate's lands to pay debts. No answer was filed by Mrs. Smith. An order of sale was made, and the two tracts in controversy were sold to Wil liam Vanhorn. The proceeding was in all respects regular, except that, upon the coming in of the report of sale, notice was issued to the defendants in said proceeding to show cause at the courthouse in Morganton on the 23d of December, 1885, why the sale should not be confirmed. Copies of this notice were served on Waits Smith and wife, Nancy Smith, on December 5, 1885. In response to said notice the said Waits and Nancy Smith, on December 22, 1885, filed an answer, in which they alleged that as to lots 2 and 5, being the lots in controversy in this case, "David Vanhorn did not die seised of the said two tracts, but had sold the same to the feme respondents for valuable consideration, by deed duly probated and delivered, and now recorded, long before his death. That the feme respondent, by virtue of said deed, is owner in fee of said two tracts of land." On December 24th an order was made in the cause, reciting as follows: "This cause coming on to be heard this day, by consent, and it appearing that the administrators of David Vanhorn have sold the first, second, third, fourth, and fifth tracts of land described in the petition, in manner and form as follows, to wit: * * * And it further appearing that notice was issued to all of the defendants except Waits Smith and wife, Nancy Smith, to show cause on the 23d day of December, 1885, why said sale should not be confirmed, and notice having issued to Waits Smith and wife, Nancy Smith, to show cause on the 26th day of December, 1885, why said sales should not be confirmed, the said last-named defendants having filed an answer to said notice and said sales, from the 'report of administrators, ' and the answer of said defendants appearing to be reasonable, and no sufficient cause being shown why said sales should not be confirmed: It is now, on motion of I. T. Avery, attorney for plaintiffs, administrators, ordered, adjudged, and decreed that said sales be in all respects confirmed." The order further directed the administrators to execute deeds to the purchasers. This cause was heard before his honor Judge Justice, upon a motion to restrain the defendants from cutting timber on...