Sutton v. Schonwald

• Decision Date: 28 February 1882
• Citation: 41 Am.Rep. 455,86 N.C. 198
• Court: North Carolina Supreme Court
• Parties: W. J. SUTTON and wife v. JAS. T. SCHONWALD and others.

86 N.C. 198

41 Am.Rep. 455

W. J. SUTTON and wife

v.JAS. T. SCHONWALD and others.

Supreme Court of North Carolina.

February Term, 1882.

CIVIL ACTION tried at Fall Term, 1881, of NEW HANOVER Superior Court, before Shipp, J.

The plaintiffs in this action seek to have set aside a decree of the late court of equity. As made by the pleadings and exhibits the case is as follows:

David Smith died in the year 1862, seized of a parcel of land situate in the city of Wilmington, and leaving as his only heirs at law, the feme plaintiff and a son named David, both being infants of tender years.

At December term, 1862, of the county court for New Hanover county, the defendant Schonwald applied to be appointed guardian of both of said infants, and supposing that such appointment had been conferred upon him, gave a bond sufficient to cover their joint estates, but the records of the court show his appointment as guardian for David only. In 1863, at the fall term of the court of equity held for said county, the said defendant Schonwald, as guardian of both infants, filed a petition for the sale of the land, assigning as a reason for its sale, that it yielded small rents and that the interest of the children would be promoted thereby. At the same term, it was referred to the master to ascertain and report whether the sale as asked for, would be conducive to their interests. The master took evidence in the shape of affidavits, as to that point, which he returned with his report recommending the sale to the court; and thereupon the court made a decree directing a sale of the land after advertisement, for cash.

The sale was made as directed, and a report thereof made to spring term, 1864, for said court, one C. E. Thorburn being the purchaser at the price of ten thousand dollars, and a decree of confirmation and for execution of the title to the purchaser. The purchaser paid the money to the clerk and master of the court, who paid it to the defendant Schonwald as guardian of the infants, and being Confederate currency, it perished in his hands by the results of the war. The master made the purchaser a deed, who afterwards sold it to the defendants, Kidder and Martin, for value and without any notice of any irregularity in the proceedings, and they in turn sold it to the other defendants. The feme plaintiff intermarried with the co-plaintiff before becoming of age and has been covert ever since. At the trial certain issues were submitted, and responded to as follows:

1. Was James T. Schonwald appointed guardian of the infants, Kate and David, and if so, when? No.

2. Was a petition filed in the court of equity, and an order of sale made after a reference to the master, and his report that it was for the interest of the infants, and did the sale take place, and was the same reported and confirmed, and order for title made, and deed executed to the purchaser as alleged? Yes.

3. Had Schonwald been appointed guardian of the feme plaintiff at the time of the filing of the said petition, or was he appointed at any time before payment of the purchase money and the execution by the clerk and master of the deed to the purchaser? No.

The court thereupon gave judgment declaring that the order of sale made at fall term, 1863, of said court of equity, be annulled and vacated as to the feme plaintiff and her interest in the land, and also the order confirming the sale and the deed made in pursuance thereof, so far as related to her title and interest in said land, from which judgment defendants appealed.

Messrs. Russell & Ricaud, for plaintiffs .

Messrs. E. S. Martin and A. T. London, for defendants .

RUFFIN, J.

We cannot concur in the view taken by His Honor. The most that can be said towards impeaching the decree of the court of equity, the vacation of which is the purpose of the present action, is, that it was irregular. It was the work of a court of competent jurisdiction pertaining to the whole cause, its subject matter, and its parties, and was but an instance of that general authority over the estates of infants, which the courts of equity have so long exercised, that it is now found impossible to trace the source from which it was derived. 2 Story Eq., § 1328.

The plaintiff's counsel indeed insisted, that in this state the power of the court of equity to sell the lands of an infant at the instance of his guardian, was a special one, and wholly derived from the statute of 1827 (Rev. Code, ch. 54, § 32), and that unless every requirement of the statute was strictly complied with, no attempted sale of an infant's lands could be valid; that in such case it would be an act void, because done wholly without authority, and not one irregularly done within the scope of the court's authority.

If the premises assumed by counsel be true, then certainly his conclusion is correct. For all the authorities agree in saying, that those powers which are created and conferred specially by statute, are to be strictly construed, and whatever formalities are prescribed must be punctually fulfilled, as the courts have no power to dispense with the requirements of a statute, and most especially is this principle rigidly adhered to, in the case of judicial and probate sales. Freeman on Void Judicial Sales, § 53; Leary v. Fletcher, 1 Ired., 259.

But since the decision made in Williams v. Harrington, 11 Ired., 616, there can be no longer room for doubt as to the extent of the jurisdiction vested in the courts of equity of this state, to dispose of the estates, whether real or personal, of infants for their benefit. That was an action at law it is true. But the very point upon which it hinges, was the character and extent of the jurisdiction of the court, whose decree was then the subject of attack--if general, it could not be collaterally impeached, but if special, then it was open to attack. Without any sort of reservation, it was declared that in this state the courts of equity, as constituted by the act of 1782, had the full jurisdiction and authority over the estates of infants, that was ever lodged in the court of...