Stafford v. Harris
| Decision Date | 31 January 1875 |
| Citation | 72 N.C. 198 |
| Parties | JAMES C. STAFFORD, Adm'r., . v. EPHRAIM HARRIS, Guardian, . |
| Court | North Carolina Supreme Court |
The cases, required by Sec. 420 of the C. C. P. to be submitted by the Judge of Probate to the Judge of the Court in or out of term, are those only where the petitioners are infants and the proceedings are ex parte.
Where an administrator petitions to sell a certain tract of land for the payment of debts, which land is particularly identified and described by metes and bounds in the petition and the order of sale, the order confirming the sale and the order to make title; and before the title is made to the purchaser of the land, the administrator dies: Held, that the Probate Court had no authority, after such order and confirmation of sale and order to make title, to entertain a motion in the cause, on the part of the purchaser, to so amend the pleadings as to include another tract of land not therein mentioned:
Held further, that under the circumstances, even if the case was properly before the Court, his Honor would have no power to amend the petition, upon parol evidence that a tract of land had been omitted therefrom through mistake.
This was a PETITION in the cause to be allowed to amend the original petition, heard before his Honor Judge Albertson, at Chambers in PASQUOTANK county.
The petition was originally filed before the Judge of Probate, and the amendment allowed by him. The petition involving the interests of infants the Judge of Probate transmitted the papers to the Judge of the Court, who confirmed the order made in the Probate Court, from which judgment the defendants in the original petition appealed.
All the material facts, pertinent to the points decided, are fully stated in the opinion of the court.
Smith & Strong, for appellants .
No counsel, contra.
The plaintiff as administrator, instituted special proceedings in the Probate Court against the defendants, who are the infant heirs of the intestate, for the sale of a tract of land to make assets for the payment of debts. The petition for that purpose contained the following description of the land: “One tract of land in Pasquotank county containing 90 or 100 acres, more or less, adjoining the lands of Frank Jennings, Lowry Davis Sam'l Rhodes and C. L. Whitehurst.” The defendant answered, admitting the necessity of the sale, and an order of sale was made as prayed for. The administrator in advertising the sale, described the land as one tract as set forth in the petition and order of sale and the land was sold by the same description, the sale confirmed by the court, and the title was ordered to be made on the payment of the purchase money.
The money has been paid but the administrator died before the title could be made. The purchaser, one Hinton now files his petition in the Probate Court, as a foundation for a motion in the cause, alleging that the intestate owned another small tract of ten acres near this larger one, but separate therefrom, by...
To continue reading
Request your trial
-
McDaniel v. Leggett
...to the judge, the judge may retain jurisdiction and dispose of the cause as if originally before him. Perry v. Bassenger, supra. Stafford v. Harris, 72 N.C. 198, decided prior the Act of 1887, and upon somewhat different facts, is not in point. In the case at bar the matter was properly pre......
-
Spencer v. Credle
...up to the final confirmation, except in cases where an ex parte petition is filed, and some of the petitioners are infants. Strafford v. Harris, 72 N.C. 198; Mauney Pemberton, 75 N.C. 219. This was not an ex parte proceeding, and Sadler had the power to render the final decree. In the petit......