Ward v. Lowndes
Decision Date | 09 June 1887 |
Citation | 96 N.C. 367,2 S.E. 591 |
Parties | Ward and others v. Lowndes and others. |
Court | North Carolina Supreme Court |
Where, because of supposed irregularities in a special proceeding instituted by an administrator for the sale of real estate to pay debts, a second proceeding is instituted by the same administrator, and at the sale had in the second proceeding land is bid off at the same price, with interest, to the same person who bid it off at the first sale, heirs and devisees, having been duly made parties to the second proceeding, and having had their day in court, are concluded.
Where, in a special proceeding, instituted by an administrator for the sale of real estate to pay debts, the court takes jurisdiction, decides that service on non-residentinfant heirs and devisees and others has been made by publication, decides that, a guardian ad litem for the infants has been appointed, recognizes such guardian, and determines the whole proceeding on the merits, irregularities therein cannot be taken advantage of in an action' brought by such heirs and devisees to recover the land.
The mere fact that the administrator who instituted a special proceeding for the sale of real estate to pay debts wrote (for the convenience of the clerk of the court) the summons, held not constructive fraud.
One who bids off real estate at an administrator's sale to pay debts may cause the deed to run to such person as he may indicate, —to his wife, for instance.
Appeal from Buncombe county.
L. de B. McCrady, for plaintiffs.
T. F. Davidson, for defendants.
The plaintiffs, except Henry Marrigalt, are the legatees, devisees, and heirs at law of Joshua Ward, deceased, and brought this action simply to recover the possession of the land described in the complaint. The principal defendant, Charles T. Lowndes, in his answer denied the material allegations of the complaint, except that the plaintiffs were such heirs and devisees. He alleged, as matter of defense, that the said ancestor of the plaintiffs died insolvent in the state of South Carolina, leaving a last will and testament which was duly proven in that state; and a copy thereof, duly authenticated, was allowed, filed, and recorded according to law in the county of Transylvania in this state; and, the executrix therein named having renounced her right to qualify as such in this state, F. J. Whitmire was appointed administrator cum testamento annexo of this will; that he obtained judgment against this administrator in the superior court of the county named for the sum of $24,500.50, with interest thereon from the date of the judgment; that thereafter the administrator brought special proceedings, in the court mentioned, to obtain a license to sell the land in question and other lands to make assets to pay the debts named and other debts of the testator; that, under and in pursuance of orders and judgments in these proceedings, the lands were sold, the defendant purchased so much of the same as is now in controversy, the sale was confirmed, the purchase money was paid, and title, under his direction, was made to his wife, Sabina E. Lowndes; that these, special proceedings were regular and effectual, and he was placed in possession of the land about 1872, and has been in possession of the same ever since, etc.
The plaintiffs afterwards, by consent of parties, amended their complaint, reiterating that first filed, and alleged that the special proceedings mentioned and relied upon by the defendants in their answer were fatally irregular, fraudulent, and absolutely void; that the present plaintiffs, devisees and heirs at law, were, at the time of such proceedings, infants of tender years; that they were not parties to them in any just sense, or in contemplation of law, nor were they lawfully represented therein by any general guardian or guardian ad litem, as allowed and required by law in such cases; that the court had no jurisdiction of them; that the supposed judgment was not such in law; that it was not a just one or for an amount honestly due the defendant Lowndes, but was obtained by fraud and collusion between him and the adminstrator named, etc.
The defendant answered the amended complaint, alleging the regularity, fairness, justice, and validity of the proceedings mentioned; the justice and fairness of his judgment; the sale; the due application of the assets; the proceeds of the sale of the land, leaving a large part of his and much of the other debts unpaid; the effectiveness of the orders, judgment, sale, etc.
The following is so much of the case settled on appeal as is necessary to a proper understanding of the opinion of the court:
The following issues in the above-entitled cause were submitted to the jury, resulting in the responses as indicated:
A trial by jury as to all other issues of fact was waived by the parties, and it was agreed that the court should find all facts not found by the jury, and decide all other questions of fact and law involved in the controversy. Thereupon the court finds the following facts:
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