72 N.C. 575 | N.C. | 1875
We concur in the conclusion of his Honor, that "the judgment and decrees, c., made by the Clerk be vacated and set aside."
We put our decision upon two grounds:
1. The order which authorizes the executor and the executrix to sell the land, does not sufficiently describe the land which they were to sell. It is in these words: "Ordered that James Blythe, executor, and Eliza Hoots, the executrix of Joseph Hoots, have leave to sell seventy-five acres of the land described in the petition, so as not to include the dwelling house and out buildings and garden of the premises, to be surveyed and set apart by the petitioners before sale."
This leaves it in doubt whether "the dwelling house and out buildings and garden of the premises" were to be surveyed and set apart by the petitioners before sale, (with a view to the widow's dower,) which is the grammatical construction, *577 or whether the "seventy-acres" were to be surveyed and set apart before the sale; but take it either way, it nowhere appears that either the one or the other was surveyed and set apart before the sale.
So in fact the land offered for sale was not identified, and persons bidding at the sale could not tell what particular land was offered for sale. The petition sets out that "Joseph Hoots died seized of one hundred and twelve acres of land, including the place where he lived and died, joining Rufus Edney, Andrew Maxwell and Toliver Lewis, on the waters of Clear Creek, worth some five or six hundred dollars, subject to the widow's claim of dower," and the order is to sell seventy-five acres of the land as above stated. The dower was not assigned, and no survey was made to identify the seventy five acres.
James Blythe alone reports, that he had sold "the land ordered to besold," and received the purchase money, and thereupon the clerk confirms the sale of "seventy-five acres of the land described in the petition." Thus the land sold is left altogether indefinite, and the part of the order of sale (whether it meant to have the dwelling house surveyed and set apart, or to have "the seventy-five acres" surveyed and set apart,) was not complied with.
2. The order directs the sale to be made by Blythe, the executor, and Eliza Hoots, the executrix; the sale was in fact made by Blythe alone, who received all of the purchase money and made his report of the sale, which was confirmed; thus the rights of Eliza Hoots, the executrix, were in the words of her petition "subverted," and after getting her to swear to the petition to obtain leave to sell, she is put aside, and excluded from any farther participation in the matter, the sale is made and the purchase money received and appropriated by Blythe alone. In this there is manifest error, and the executrix was well warranted in her petition to set aside the sale.
No error. Let this be certified.
PER CURIAM. Judgment affirmed. *578
