77 S.E. 762 | N.C. | 1913
Petition to sell land for assets, heard on transfer to civil-issue docket, on the pleadings, demurrer, etc.
Plaintiff, administrator of R. R. Best, filed petition to sell land of his intestate to make assets to satisfy unpaid claims against the estate, among others, a judgment rendered against said intestate in favor of D. A. Cogdell, administrator of T. W. Best, the latter being (515) father of present plaintiff, before Hugh Humphrey, J. P., on 15 May, 1912. Other claims were set out in the petition which had been reduced to judgment. The defendants, the heirs at law of R. R. Best, answered, denying the validity of claims other than that of Cogdell, administrator, and, as to that, plead that at the time judgment was rendered in May, 1912, the same was long barred by the statute of limitations; that Cogdell had made final settlement of the estate of T. W. *419
Best, making no reference to or account of this claim, and that R. S. Best had qualified as administrator of his intestate, R. R. Best, with sole view of having this debt collected, and had suffered judgment to be taken without entering the plea of the statute of limitations and without notifying any of the heirs at law of R. R. Best, and that said judgment was procured by fraud and collusion between Cogdell, administrator of T. W. Best, and the present plaintiff, and defendants plead the statute of limitations to this claim and said fraud and collusion against enforcement of same by sale of the realty descended to them from their father, R. R. Best. Plaintiff having demurred to the answer as to this claim, there was judgment overruling demurrer, and plaintiff excepted and appealed.
There is doubt if an appeal properly lies in the present condition of the record; a sale of the land, in any event, being necessary, having been ordered for the purpose of making assets. Arrington v.Arrington,
In the present case, the only facts alleged tending to show fraud are that the administrator, having qualified for the purpose of furthering the collection of a debt due to his own father's estate, failed to plead the statute of limitations, and, second, that Cogdell, the father's administrator, had made final settlement and had not accounted for present claim as part of the assets; but neither of these averments, nor both together, without more, amount to "collusive fraud." Byrd v. Byrd,supra. It is nowhere suggested that the original demand, on which this judgment was rendered, was not a just debt, and it is admitted in the answer that the same has never been paid. The heirs of R. R. Best, the present defendants, had the first right, and were, no doubt, offered opportunity to qualify as his administrator, and, having failed (517) to do it, the present plaintiff had prima facie the right to qualify to collect his father's debt, and neither the power nor the duties of Cogdell, as administrator of T. W. Best, had necessarily ceased because a final settlement had been formally made. Unless in terms discharged from further execution of his trust, he still had power and may have been under obligation to go on and collect assets when opportunity was further presented. 18 Cyc., p. 146. There was nothing in the facts set out, therefore, which amounted to a valid defense against the claim in question, and the further and general allegation of fraud and collusion did not amount to issuable matter.
On perusal of the pleadings, as they now appear, there was error in the judgment overruling plaintiff's demurrer.
Reversed.
Cited: Barnes v. Fort,