10 S.E. 307 | N.C. | 1889
Afterwards, in the court below, it was so referred, and the (302) referee made report, the material part of which is as follows:
"An action was brought in the Superior Court of law for Richmond County, by the then C. M. in equity, to enforce collection of the purchase money on said bond, and judgment was rendered at Spring Term, 1874; the amount of said judgment was paid into the office of the clerk of the Superior Court, on 30 October, 1874. None of this money has been paid to, or received by, the heirs of George Dawkins, Jr., as such.
"The following persons, who are parties to this action, have received the amounts as stated as heirs of Jesse Dawkins (their receipts in each case so expressing), to wit: Wm. K. Dawkins received on 30 October, 1874, $143.10, in full of his share as heir of Jesse Dawkins and assignee of the interest of George Dawkins, Sr.; Sarah A. Dawkins received 5 May, 1875, $48.44, in full of her share as an heir of Jesse Dawkins; S. S. Covington, Effy J. Covington, and Flora B. Caddell received, 10 August, 1875, $32.29
Upon consideration of this report, the former orders and opinions of this Court, and the whole case, the court dismissed the petition praying that the judgment therein mentioned be set aside. The petitioners, having excepted, appealed. Among other things, we said in the opinion in the former appeal in this case, "but we do not now decide that the order of 1874 shall be vacated, for (303) however irregular it may be, it may be sustained as a valid order if the heirs of George Dawkins have given their sanction to it by receiving *232 their shares of the purchase money. It would be a gross injustice to the heirs and assignees of McDonald to set aside the order of 1874, and have the title made to them without a full indemnity to McDonald or his assignees; but, if they had offered, or were still to offer, the indemnity, we think their acquiescence in the original order would debar them from setting up any title to the land."
What is thus said rests upon the grounds that, if the heirs of George Dawkins, who, in his lifetime, purchased the land in question, each received his share of the purchase money therefore, he must, on that account, be deemed and held to have impliedly assented to, and acquiesced in, the irregular order complained of, directing the title to the land to be made to Randolph McDonald, who paid the purchase money as surety for George Dawkins, the purchaser; and, also, upon the further ground of long acquiescence — ten years — without complaint or any notice of dissatisfaction on their part, so far as appears. It would be unjust in a high degree to allow the heirs to receive the purchase money and have the title to the same made to them without reimbursing the surety the purchase money he had paid; and, moreover, it seems to us that it would be unjust, after the surety had so paid the purchase money, and, under an irregular order of the court, had obtained title to the land and had had possession of it for years, then to compel him to surrender the same upon receiving the money he had paid as such surety, unless this should be done for the most weighty considerations.
The Court will not allow parties to temporize, trifle and acquiesce in irregular proceedings in actions, taking benefit of them for an unreasonable length of time, to the prejudice of other parties, especially after rights of third parties have supervened. In this case, so far (304) as appears, there was no reasonable excuse for the long delay to move to set the judgment in question aside.
It is said that the petitioners did not receive the purchase money paid into court by the surety, as heirs of George Dawkins, deceased, and this so appears from their respective receipts given for the same. But, nevertheless, they were heirs of George Dawkins, and each received his or her share of the purchase money of the land paid by Randolph McDonald, the surety of their ancestor, and this was the material fact. They could not avoid the consequences of receiving the money by a mere shift as to names and forms.
It is further insisted that the surety, Randolph McDonald, did not pay all the purchase money for the land. It does not appear, affirmatively, that he did; it appears that W. K. Dawkins paid $193.10 of it; but whether he paid it on his own account, or as administrator of George Dawkins, deceased, does not appear affirmatively. It is singular and *233 strange that no complaint was made on this account years ago, nor is any excuse shown for such long delay, nor is any explanation given now to show that some arrangement was not made, to the satisfaction of the parties interested, at the proper time and in the proper way. The order was acquiesced in for many years, and it must be taken that there was proper ground for it, else it would not have been, and interested parties having knowledge of it would not have allowed it to remain undisturbed for so long a period.
We trust that the petitioners have suffered no wrong in the matter of their motion, but if, by possibility, they have, it is because of their own laches. The proceedings of courts are not to be disturbed, after a long lapse of time, for light causes, especially when the interested parties had knowledge of, and took benefit of them, directly or indirectly. It is found as a fact that the parties — the petitioners — did not (305) have "legal notice" of the order complained of, but it appears that they, in fact, knew of it, and received the purchase money that gave rise to it.
Affirmed.
Cited: Vick v. Wooten,
