Thompson v. Rospigliosi

• Decision Date: 12 February 1913
• Citation: 77 S.E. 113,162 N.C. 145
• Parties: THOMPSON et al. v. ROSPIGLIOSI et al.
• Court: North Carolina Supreme Court

77 S.E. 113

162 N.C. 145

THOMPSON et al. v. ROSPIGLIOSI et al.

Supreme Court of North Carolina

February 12, 1913

Appeal from Superior Court, Henderson County.

Action by David A. Thompson and others against Julia E. Rospigliosi. From orders denying a motion by J. S. and W. S. Kuhn for a resale, and a motion by H. L. Borland that he be made a party defendant, the moving parties appeal. Affirmed.

The court held not to have abused its discretion in a partition action in refusing to grant a resale upon an offer of an advance bid on motion of the offerer in which none of the parties joined.

This proceeding was commenced on the 22d day of April, 1912 before the clerk of the superior court of Henderson county. It is alleged in the petition that the petitioners and the defendants are the owners in fee simple as tenants in common of a large body of lands, described in 77 grants issued by the state, and that within these boundaries there is a tract of 290 acres, described in paragraph 2 of the petition, and two tracts of 220 acres and 800 acres, respectively described in paragraph 3 of the petition.

It is further alleged in the petition:

"(6) That, owing to the large number of parties interested and the character, condition, and location of said property actual partition thereof cannot be had without injury to all the parties interested, and the interests of all parties require a sale of said lands, and the interests of all will be enhanced by the sale thereof.

"(7) That the Appalachian Power Company, a corporation, has offered for the tract of land and water rights described in paragraph 2 of this petition the sum of $40,000 cash, and your petitioners are advised and believe, and so allege, that the said sum is a full and fair price for the same; that the said Appalachian Power Company is ready, able, and willing to pay the said price for the said land and water rights on the delivery to it of a deed conveying a good and sufficient title in fee simple therefor.

"(8) That the owners have a prospective purchaser for the tract of land and water rights described in paragraph 3 of the petition for approximately the sum of $90,000 cash, and your petitioners are advised and believe, and so allege, that the said sum is a full and fair price for the same."

And the petitioners pray judgment, among other things, as follows:

"(2) That, if upon investigation it shall be found by the court that the price offered by the said Appalachian Power Company for the lands and water rights described in paragraph 2 of the petitions is a full and fair price, the court direct the said commissioners to sell the same to the said Appalachian Power Company for said price at private sale and execute deed therefor to said corporation upon payment of said purchase money.

"(3) That, if upon investigation it shall be found by the court that the price offered by such prospective customer mentioned in paragraph 8 hereof for the lands and water rights described in paragraph 3 of this petition is a full and fair price, the court direct the said commissioners to sell the same to the said purchasers for said price at private sale, and to execute a deed therefor upon payment of the said purchase price.

"(4) That the other lands be sold either at public or private sale in such manner and at such time as the court may direct."

There are many defendants, all of whom are nonresidents, some being unknown, and some infants.

Process was served on the defendants by publication, which was complete on May 23, 1912. Guardians ad litem were duly appointed for the parties unknown and for the infants. On May 23, 1912, one of the guardians ad litem filed a demurrer to the petition, upon the ground that the clerk did not have jurisdiction of the matters therein alleged, and, upon the same being overruled, appealed, which appeal was heard at the July special term of said county of Henderson. The said term convened July 29, 1912. Prior to the meeting of the said court, the attorneys practicing therein had prepared a calendar, and the above-entitled case was placed on said calendar for hearing on August 6, 1912. On the published calendar it was noted that motions in all cases would be heard on the first day of the court. It was called to the attention of counsel for the plaintiffs in the case that the case had been inadvertently placed upon the civil issue docket for the trial of jury causes, and thereupon counsel for the plaintiffs prior to the commencement of the court lodged notice that the said case would be called for hearing on the first day of said court; this being in accordance with the practice prevailing among the members of the bar of said county. On the first day of the court the demurrer which the guardian ad litem had filed to the jurisdiction of the clerk of the court, before whom the action was brought, was heard, and the same was overruled, and the court thereupon appointed a separate guardian ad litem for the infant defendant, Charlotte T. B. Cram, and a separate guardian for the unknown defendants and those holding contingent interest, all of which will appear in the record. These orders were made on the first day of the court, and the guardians ad litem filed answers on the second day of the court. On July 30, 1912, the Appalachian Power Company made the following offer to Justice, who had been appointed commmissioner to sell, which was reported to the court, with the recommendation that it be accepted: "The Appalachian Power Company, a corporation, hereby makes an offer of forty thousand ($40,000.00) dollars in cash for the tract of land and water rights described in paragraph two of the petition. The said Appalachian Power Company also offers ninety thousand ($90,000.00) dollars for the land and water rights described in paragraph three of the petition, the same to be paid as follows: Fifteen thousand ($15,000.00) dollars cash and balance to be paid in twelve (12) months, without interest, title to be retained by the commissioner until payment in full." The guardians ad litem filed answers, admitting the allegations of the petition, and that the amounts offered by said Power Company were a fair value for the property. In addition to the personal knowledge which each of the guardians ad litem had of the value of the land and water rights and easements mentioned in the second and third paragraphs of the petition, there were at the time of filing these answers the affidavits of five persons conversant with said values, to the effect that the sums of $40,000 and $90,000 were, respectively, full and fair value for the land, water rights, and easements set forth in the second and third paragraphs of the complaint, and the court found that the guardians ad litem were entirely justified in filing answers admitting that these sums were fair value for the same. The commissioner appointed to sell the lands was himself a resident of Henderson county, and familiar with the values of the property in question, and he reported to the court that the said offers were full and fair value for the same.

On the afternoon of Wednesday, 31st of July, a motion was made by counsel for the plaintiffs that the bids of the Appalachian Power Company be accepted, and the said motion was considered in open court, and upon considering the same and the recommendation of the commissioner, together with the affidavits as to the valuations, the court found that the said offers were full and fair value, and that it was for the best interest of all concerned that the said offers should be accepted. Before accepting the same, however, the court inquired if there was any objection on the part of any one to the acceptance of said bids, and there was no objection, and thereupon the court signed the order, as appears in the record, accepting said bids, and directing the commissioner to make title upon the payment of the purchase money in accordance with said bids. Attorneys for the plaintiffs demanded that the said Appalachian Power Company immediately pay the cash payments called for in said bids, and thereupon, in accordance with the said demand, the Appalachian Power Company did on the evening of July 31st give to the commissioner drafts or checks for the amount of the bids, which said drafts or checks were paid a day or two later, and the commissioner executed and delivered to the Appalachian Power Company a deed conveying to said corporation the lands, water rights, and easements described in the second paragraph of the petition, and gave also to the said Appalachian Power Company a receipt for $15,000 cash payment for the other land.

On August 6, 1912, H. L. Borland, purporting to be the agent of Kuhn & Kuhn, made an offer in their behalf in open court to pay $145,000 for said property, which said offer was amended on the 9th of August, 1912, by offering $145,000 for a good title to said property. At the same time he made the offer to pay $145,000 for a good title to said property as the agent of Kuhn & Kuhn the said Borland filed an application in his own behalf to have the decree confirming the sale to the Power Company set aside, and that he be made a party, alleging that he owned an interest in said lands. The claim of the said Borland to own an interest in said lands is based on three deeds, all of which were executed to him after said July special term began, one being of date July 31, 1912, and the consideration therefor being $100, one of date July 31, 1912, the consideration being $1 and other valuable considerations, and one of date August 1, 1912, and the consideration $1 and other good and valuable considerations. In opposition to the motion of the said Borland, the petitioners filed the affidavits of E. B. Goelet and S. J. Justice as follows:

"E. B. Goelet,

...