13 S.E. 841 | N.C. | 1891
The plaintiffs brought this action in the Superior Court in term to set aside a sale of the land in controversy, made by virtue of a decree rendered in March, 1883, in a special proceeding instituted before the clerk by the administrator of their deceased father for the purpose of selling land to pay debts, and also to recover the possession of the land from those holding by mesne conveyances under the purchaser at the said administrator's sale.
After setting forth that the sale was made, that one Sallie Barnett became the purchaser for the sum of $203, and that it was confirmed by the court, the cause of action is stated in the complaint, as follows:
7. That the said order of sale was and is irregular, illegal, (166) unjust, a fraud upon the plaintiff's rights and void, and the acts done thereunder are illegal and void, because:
(1) Isabella Edwards, a child and heir of said Mangum, and a plaintiff herein, and her husband, were not parties in and to said special proceeding.
(2) The defendants in said special proceeding, who were then under the age of fourteen years, to wit, said Lucy and Susan, were not summoned as required by law (Code, sec. 217), which fact appears from the indorsement on the summons therein, it being as follows: "Received 22 February, 1883. Served on all the defendants, including J. S. Merritt, guardian ad litem, by reading the summons to each of them. This 3 March, 1883. Fee $7.20. C. G. Mitchell, sheriff Person County." *121
(3) The guardian ad litem for the infants in said special proceeding, said Vinie, Lucy and Susan, whose answer was filed on 12 March, 1883, as appears from same, was, at the time of said filing, and at the time, of said order and sale, representing interest adverse to his said wards, infants, which fact appears from the papers and accounts, now filed in the clerk's office, in the administration of said Mangum's estate, one of which accounts, for the sum of $19. 48, has upon its back the following indorsement. "For value received, I transfer this account to J. S. Merritt. This 1 March, 1883. John C. Pass." The said Pass being then, and ever since then, the clerk of the Superior Court of Person County, and constituting the court herein mentioned, which said facts rendered, as plaintiffs are advised and believed, J. S. Merritt, who was appointed by the court, the said J. C. Pass, on 22 February, 1883, guardian ad litem, as aforesaid, incompetent to act as such guardian; all of which facts were in the knowledge of the court.
9. That the said sale of land was illegal, unjust and void, because:
(1) The aforesaid order was void, and contained no authority to sell, on account of the facts set forth in article 8 of this (167) complaint.
(2) The homestead was not laid off and set apart before sale under said order.
(3) The homestead in said land was sold to pay debts, when it was exempt from the payment of such debts.
10. That the said minors, Lucy and Susan, are entitled to a homestead in said land.
11. That the plaintiffs are the owners, and entitled to the possession of said land as heirs of Mangum Barnett, deceased, since, as they are informed and believe, the said sale was void as aforesaid, as being contrary to the Constitution and laws of North Carolina, and a great injustice upon their rights. . . .
13. That the defendants deny the title of the plaintiffs, who are the real owners of said land, and refuse to give possession of same to plaintiffs, who are justly entitled to it.
. . . Wherefore, the plaintiffs demand judgment against the defendants:
(1) For the recovery of the possession of said tract of land above described.
(2) For the recovery of the sum of eight hundred dollars damages for the unlawful occupation of same.
(3) For six hundred dollars for the rents and profits of same for the last three years.
(4) That the said commissioner's deed to Sally Barnett be declared void. *122
(5) For their costs in this action sustained, and for any other just relief.
The defendants insisted that the complaint did not state facts sufficient to constitute a cause of action, for reasons set out in their answer, to wit, that the deed referred to in the complaint from chambers (commissioner to Sallie Barnett) could not be in this cause attacked, it being the deed under which defendant claimed the land in controversy. (168) During the argument the court intimated an opinion that the deed could not be attacked in this suit, and also an opinion that the plaintiffs did not, in their complaint, affirmatively state that the defendants in the suit of Chambers v. Dickens (referred to in the complaint, said defendants being part of the plaintiffs herein), were entitled to a homestead in said land, and that it was not sold for debts good against the homestead. In deference thereto, the plaintiffs submitted to a judgment of nonsuit and appealed.
Reversing the order in which the points were presented by counsel, and assuming for the present that the judgment in the special proceeding — by virtue of which Sallie Barnett bought the land in controversy, which she has since sold to several other defendants — cannot be attacked, on account of irregularities in this action brought in the Superior Court, it would only remain to determine whether, without impeaching that judgment, the plaintiffs, admitting the truth of every allegation contained in the complaint, have shown Primafacie that they have title to the land in controversy. If the judgment be treated as valid and the sale and confirmation unimpeachable for present purposes, then the deed executed to Sallie Barnett by the commissioner would, as against the parties to that record, claiming likewise through their father (Mangum Barnett), show title in her, and unless it appeared from the complaint (if admitted to be true) that the sale was void, because it was made in violation of Article X of the Constitution, and the statutes enacted in pursuance of it in reference to homestead exemptions, the plaintiffs cannot recover. Mobley v. Griffin,
It has been expressly decided by this Court that where a plaintiff offers in evidence, in an action involving the title and right to the possession of land, the record of the judgment, execution, levy and sale of the land in controversy, as the property of the defendant, or of one from whom the defendant is shown to derive title, the latter cannot rebut this prima facie proof of title by a simple denial or by an allegation, without testimony tending to establish, it that he is entitled to the homestead in the land in dispute. Mobley v. Griffin, supra. Upon the same principle, if a plaintiff allege in his complaint facts which, if true, establish prima facie the title of the defendants as against him by a deed made in pursuance of a judgment of the court, the general allegation that such sale was void for failure to allot a homestead without averring specifically the facts upon which the right to the homestead depends, so as to exclude the possibility of the validity of the sale, consistent (170) with such statement, must be held insufficient to meet and rebut the apparent right of the plaintiff to recover. Upon a careful review of the complaint, it appears that the plaintiffs have failed, if they could truthfully have done, so to negative the possibility that the land was sold to make assets to satisfy debts created before the right to such exemptions accrued. We concur with the judge below in the view that the facts alleged by the plaintiffs are not sufficient to relieve them of the burden of showing their right to have a homestead assigned in said land, if we grant that the irregularities (if any appeared upon the face of the record of the special proceeding) would not be sufficient to destroy its efficacy as evidence of the validity of the sale under which Sallie Barnett and the other defendants, through her, claimed title.
But, recurring to the other question, which so frequently confronts us with slight variations in the facts, but no difference in the general principle applicable, we think it manifest that the judgment in the special proceeding can only be attacked directly by those who were parties to the proceeding, and that it would be collateral impeachment of it to declare that, together with the subsequent orders of confirmation, etc., it did not constitute evidence that so much of the right and *124
the title of Mangum Barnett as descended to those whose names appear as parties of record, has passed to Sallie Barnett. England v. Garner,
But the plaintiffs allege that Isabella Edwards was a child and heir at law of Mangum Barnett, and that neither she nor her husband, Hal Edward, were either real or nominal parties to the special proceeding, and that she is not concluded as to her rights in the land by the decree of sale. The defendants deny the allegations of fact that she is an heir at law of Mangum Barnett, and insist, by way of argument, that (171) if she is, she cannot now claim a homestead in the land because she is more than twenty-one years of age. If Isabella Edwards is one of the heirs at law, and is not estopped by the judgment in the special proceeding from claiming title to the interest that descended to her in common with the other heirs of Mangum Barnett at his death, then she is entitled to recover possession of the land, and to be let in, to the extent of her interest as tenant in common, with the defendants who have acquired, so far as we can see in this action, the undivided interest of his other heirs at law. Gilchrist v. Middleton,
Section 1438 of The Code provides that no order to sell the real estate of a decedent shall be granted to the personal representatives until the heirs or devisees of the decedent shall have been made parties, and the statute is now substantially the same that has been in force since 1846. Revised Code, ch. 44, sec. 47; Thompson v. Cox,
While we concur with the judge below in the general view which he seems to have taken of the law, we think that there was error in withdrawing from the jury the question whether Isabella Edwards was an heir at law of Mangum Barnett, and, as such, entitled to (173) be let in as tenant in common with the defendants.
Whether the action will be further prosecuted in her interest alone, or whether all will submit to nonsuit and await the result of a direct proceeding before moving for possession of the land, is a question addressed to the plaintiffs and their counsel.
There is error, and a new trial is awarded.
Error.
Cited: S. c.,
