Tyson v. Belcher
| Decision Date | 09 May 1889 |
| Citation | 9 S.E. 634,102 N.C. 1121 |
| Court | North Carolina Supreme Court |
| Parties | Tyson et al. v. Belcher et al. |
Judgment—Collateral Attack.
A sale and conveyance of land, upon petition by devisees thereof, under the decree of a court having jurisdiction of the subject-matter and of the parties interested, cannot be attacked in ejectment by the devisees against persons claiming under the purchaser at such sale for mere irregularities in the proceedings.
Appeal from superior court, Pitt county; A. C. Avery, Judge.
It appears that Sherrod Tyson died in 1886 leaving a last will and testament, which was duly proven. The plaintiffs are his heirs at law and the devisees of his will, including the executrix thereof, and bring this actionto recover the land described in the complaint, and presently to be again mentioned. By his will the testator bequeathed and devised all his property, both real and personal, including the land in controversy, to the plaintiff's, to be owned, used, and enjoyed as by the will provided. Afterwards, at spring term, 1875, of the superior court of the count ty of Pitt, the present plaintiffs filed their ex parte petition in that court, describing the land now in controversy, and, for causes and purposes therein alleged and specified, prayed the court to order and direct a sale of the land, and the application of the money arising from such sale, in lieu of it, for the benefit of the plaintiffs, not inconsistent with the provisions of the will, etc. Some of the petitioners were infants, and sued by their mother, as their next friend, and she, also, was a petitioner. Upon hearing affidavits and inquiry as to the expediency and propriety of a sale of the land, etc., the court granted the prayer of the petitioners, and entered an order directing a sale of the land. This order was expressly approved by the judge of the court. Afterwards the land was sold in pursuance of such order, and William Belcher, under whom the defendants claim, became the purchaser thereof. This sale was confirmed by proper order made by the presiding judge in term time. This order directed the application of the purchase money, and that the commissioner appointed to sell the land make title to the purchaser, which he did by his deed executed on the 20th of December, 1878. On the trial the defendants offered in evidence a transcript of the record of the proceeding, the substance of which is set forth above. The plaintiffs objected to its admission, upon the ground—First, that such record was void upon its face for irregularities; and, secondly, because the order of sale therein set forth, and the sale of the land in pursuance of it, was contrary to the provisions of the will mentioned above. The court overruled the objection, and admitted the evidence, and the plaintiff excepted. "The court intimated a purpose to instruct the jury that, by virtue of the proceeding to sell the land in controversy, the legal title to it passed to William Belcher, and that the validity of the decree and...
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