74 S.E. 20 | N.C. | 1912
Claim and delivery. On reading the pleadings and it being admitted that plaintiff, at the time of trial, was not a resident of this State and had not given a bond in the State as executor, his Honor, on motion, entered judgment of nonsuit, and plaintiff excepted and appealed. *333
The facts are sufficiently stated in the opinion of the Court by Mr.Justice Hoke. It was alleged in the complaint and admitted in the (397) answer that in December, 1902, plaintiff, O. D. Batchelor, was duly qualified as executor of V. B. Batchelor, deceased. The letters of administration to O. D. Batchelor of said date, in proper form, were received in evidence, showing that said V. B. Batchelor had died resident in Nash County, leaving a last will and testament and appointing plaintiff his said executor, and it was further admitted that the will provided that no bond should be required. It was further alleged in the complaint and admitted in the answer that in December, 1908, plaintiff, as executor, had sold and delivered to defendants the sawmill, engine, boiler and other property, the subject of the controversy, for $600; had received $150 on the purchase price and took a mortgage on said property to secure the amount remaining due, to wit, $450, and the mortgage was made part of the complaint. It was further alleged in the complaint and denied in the answer that no other and further payment had been made on the purchase price, and that plaintiff was the owner of the property, under and by virtue of said mortgage, and had instituted present suit after the defendants had failed to make the payments required by said mortgage and after each and every of the payments therein mentioned had become due and payable.
On these facts and admissions, we are of opinion, and so hold, that plaintiff is entitled to proceed with his action, and that the order of nonsuit should be set aside, and this, although it was admitted further that, at the time of trial, the plaintiff was a nonresident and had given no bond. On this subject our statute, Revisal ch. 1, sec. 5, subsec. 2, enacts that a nonresident may qualify as executor; section 28, that such executor shall give bond, etc.; and in chapter 9, sec. 319, it is provided that every executor, etc., from whom a bond is required by law, before letters issued, must give a bond, etc.
Notwithstanding these requirements of the statute, it is very generally held that when a clerk of our Superior Court, in the exercise of the probate powers conferred by statute, has general jurisdiction of the subject-matter of inquiry, as indicated in chapter 1, sec. 16, Revisal, and on application made has entered a decree appointing an (398) executor or administrator, and letters are accordingly issued, such decree is controlling and may not be successfully attacked or in any *334
way questioned but by direct proceedings instituted for the purpose. Fannv. R. R.,
Applying the principle, authority here and elsewhere is to the effect that when a decree has been entered under circumstances stated, the failure to give a bond or the giving of an insufficient bond is only (399) an irregularity, in no way affecting the validity of the appointment, and that such appointment may not be questioned collaterally.Howerton v. Sexton,
Apart from this, it is admitted that defendants bought the property from plaintiff and executed the mortgage sued on to him as executor, and in the absence of any proof or suggestion that defendants' possession had been disturbed or the title passed to him in any way rightfully questioned, it is not open to defendants to resist payment or the surrender of the property, as required by his contract. Webster v. Laws,
There is error, and this will be certified, that the trial may proceed and the rights of the parties finally determined.
Reversed.