Yarborough v. Moore
| Decision Date | 06 October 1909 |
| Citation | 65 S.E. 763,151 N.C. 116 |
| Parties | YARBOROUGH et al. v. MOORE et al. Appeal of STRICKLAND et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Franklin County; O. H. Allen, Judge.
Action by R. F. Yarborough and others against W. A. Moore and others. From an order denying the motion of W. A. Strickland and J. M. Stallings and others to set aside a judgment directing a sale of the lands of Martha Moore, deceased, to pay debts, the petitioners named appeal. Affirmed.
An unreversed judgment or decree of a court having general jurisdiction over the subject-matter will sustain the title of a purchaser at a sale made under it if he had no notice of the alleged defect in the proceedings.
This is a motion to set aside the judgment of the superior court in the above-entitled action, which was brought for the purpose of selling land to pay the debts of the testatrix, Martha Moore. She died, leaving a will in which she appointed the defendants W. A. and J. C. Moore executors. The motion to set aside the judgment was made by Mabel, Annie, and Joshua Moore, children of J. W. Moore, and Frances Strickland, Mary Stallings, and Sidney Harris, children of Sarah E. Harris. By her will the testatrix devised certain lands to her son, J W. Moore, for his natural life and then to his bodily heirs share and share alike, and an undivided one-third interest in other land she devised to her daughter, Sarah E. Harris, wife of S. A. Harris, in fee. There is a provision for equality in the division of her estate, real and personal, among her children, but it is not necessary, for the purpose of deciding the case, to set it out. The testatrix died in 1874 and in 1879 R. F. and W. H. Yarborough, the plaintiffs in this action, recovered judgment against her executors for the sum of $871.52, with interest and costs, which judgment was later assigned to the Wachovia National Bank. This action was commenced in October, 1883, against the executors and devisees, under the will, to sell the lands of the testatrix for the payment of her debts and liabilities; the personal estate having been exhausted. The court ordered a sale of the land at the fall term, 1884. The sale was made March 2, 1885. The commissioner made his report to the court, and at November term, 1885, the sale was in all respects confirmed and title ordered to be made to the purchasers upon payment of the purchase money, except as to certain tracts allotted to Sarah Harris and others, which were ordered to be resold. The commissioner, in obedience to this order, sold said lands and reported the sale to the May term, 1886, of the superior court, and at January term, 1888, his report was confirmed as of May term, 1886, with directions to make title to the purchasers, the purchase money having been paid. Final judgment was entered in 1891.
His honor, Judge O. H. Allen, found the facts from the evidence before him, and it appears from his findings that the only controversy relates to the land devised to J. W. Moore and Sarah E. Harris. It appears therefrom that there was no service of the summons upon J. W. Moore, who had not married and did not marry until 10 years after the final judgment in this action. At his own request, he was permitted by the court to come in and make himself a party to the action, bought a part of the land at the sale under the order of the court, was served with sundry notices in the cause, as purchaser, and accepted a deed from the commissioner for the land bought by him. The said John W. Moore had three children by his marriage, namely, Mabel Moore, Annie Moore, and Joshua Moore, who were, of course, not parties to this action, and who now move to set aside the judgment. As to the interest of Sarah E. Harris, it appears from the findings of fact that she was living at the time of her mother's death, but died before this suit was commenced, and her interest descended to her children, Frances Strickland, Mary Stallings, and Sidney Harris, subject to the estate by the courtesy of A. S. Harris, husband of Sarah Harris, who survived her. Frances Strickland was of full age when this suit was commenced. Mary Stallings is now about 41 years old, and Sidney Harris was under 14 years of age at the time the suit was commenced. The motion to set aside the judgment was made by the heirs of J. W. Moore and the heirs of Sarah Harris. It appears that guardians ad litem were appointed by the court for all the infants, and filed answers to the petition for the sale of the land. It does not appear that any copy of the summons was delivered to the infant under 14 years of age, or "to his father, mother or guardian or to any person having the care and control of him, or with whom he resided, or in whose service he was employed." Revisal,§ 440, subsec. 2.
The court further finds that the proceeding throughout was fairly and honestly conducted; that the persons now moving to set aside the judgment were not prejudiced thereby, as they had no real or meritorious defense thereto; that the persons who have bought the land are innocent purchasers, having purchased for full value and without notice of any defects or irregularities; and that the motion to vacate the judgment was not made within a reasonable time, it having been made about 18 years after the final judgment in the cause.
The court thereupon denied the motion, and entered judgment for costs against those by whom it was made. They excepted and appealed.
W. M. Person and T. T. Hicks, for appellants.
Bickett & White, F. S. Spruill, and Wm. H. Ruffin, for appellees.
It is well settled that the superior court had jurisdiction of the proceeding to sell the land for the purpose of paying the debts of the testatrix. Acts 1876-77, p. 447, c. 241, § 6; Revisal 1908, § 129; Haywood v. Haywood, 79 N.C. 42; Clement v. Cozart, 107 N.C. 695, 12 S.E. 254; Fisher v. Trust Co., 138 N.C. 90, 50 S.E. 592. A single creditor may proceed by action in that court to subject the land of his deceased debtor to the payment of his claim. Pegram v. Armstrong, 82 N.C. 326; Shober v. Wheeler, 144 N.C. 409, 57 S.E. 152. Especially may he sue to compel the personal representative to perform his fiduciary duty and sell the land for the payment of debts. Pelletier v. Saunders, 67 N.C. 261. The statute makes it the duty of the personal representative to sell the land, when the personal property is insufficient to pay the debts, and there is no good reason why the creditor should not be permitted to compel a performance of this duty by suit, when the representative refuses to take any action in the premises. We hold, therefore, against the contention of those who now move to set aside its judgment, that the court had jurisdiction of the cause. We are concluded by the findings of the judge, as to the facts, when there is any evidence to support them, and, without discussing the question more fully with special reference to the testimony, we will consider the case upon the facts as found by him. Clark's Code, § 417, and cases cited in the notes. There is evidence in the record which tends to establish the facts as found.
We will first refer to the legal merits of the motion, so far as the children of J. W. Moore are concerned, and, for the purpose of disposing of this branch of the case, we will assume that he acquired only a life estate by the will of his mother Martha Moore. He was a party to the action, and was, of course, bound by the judgment. The question presented is: Are his children also bound under the doctrine of representation? They were not in esse when the judgment was rendered, and were not born for some years afterwards. The law is careful to preserve and safeguard the integrity of judicial sales. Public policy requires that such should be the case, in order to inspire confidence in the regularity and validity of judicial proceedings in which such sales are ordered, and to induce persons to become purchasers. The language of Ruffin, J., in Sutton v. Schonwald, 86 N.C. 198, 41 Am. Rep. 455, expresses clearly the rule of the law in this respect: ...
To continue reading
Request your trial