136 N.C. 291 | N.C. | 1904
Lead Opinion
This is an action for an injunction to prevent a sale of the land of the plaintiffs, which would cast a cloud upon their title. Omitting details unnecessary to the point upon which we place our decision, a deed in trust had been executed upon said land with a power of sale, W. T. Dortch being named as the trustee. Subsequent to the death of the trustee, his executor, the defendant Isaac E. Dortch, has advertised the land for sale by virtue of said power of sale in said deed of trust. In an affidavit filed in this cause by said Dortch he admits that he has not been requested, in writing or otherwise, by any of the eestuis que trustent in said deed to advertise the land for sale and has not had any correspondence or communication for years with either of them. Thereupon the injunction was continued to the hearing, and upon appeal that order was affirmed by a per curiam. Eason v. Dortch, 134 N. C., 753. At the hearing it does not
Error.
Concurrence Opinion
concurring. I concur in the opinion of the Court in its conclusion that the defendant Dortch should have been enjoined from making sale of the property advertised by him. In his answer he did not aver that he had been requested, in writing, by the cestuis que trust, the other defendants, to make the sale. In fact, in an affidavit filed in the cause, he admitted that he had not received instructions to make the sale. Our statute (Acts 1901, chap. 186) requires such written instructions and request as a condition precedent to the sale. But that was not the main point in the case, and I desire to express my views upon what I regard the real question raised by the appeal in addition to the matter decided by the Court.
This action was brought under chapter 6 of the Acts of 1893 for the purpose of having determined and settled an adverse claim of the defendants to a certain piece of land now in the possession of the plaintiffs and claimed as their
Tbe Act of 1893 (chap. 6) provides that if tbe defendant in such an action “disclaims in bis answer any interest or estate in tbe property, or suffer judgment to be taken against him without answer, tbe plaintiff cannot recover costs.” Therefore tbe plaintiffs here, because tbe defendants failed to answer, are entitled to a judgment, either final as of pro confesso, or interlocutory by default and inquiry, but without recovering their costs. At tbe proper time tbe plaintiffs moved before tbe Court below for final judgment against tbe defendants above named for want of an answer on their part and tbe motion was denied. I am of tbe opinion that such a judgment should have been rendered. This view I am aware is in conflict with tbe case of Junge v. McKnight, 135 N. C., 105, and I am glad to have an opportunity to say that the decision there was erroneous. Tbe Judge wbo wrote for tbe Court that case was well aware at tbe time that it threatened titles to property acquired under decrees and judgments rendered under tbe almost uniform practice of tbe courts for many years, as well as producéd uncertainty as to tbe future practice in an important line of eases. But he felt constrained to take tbe position announced by a majority of the Court because of tbe clear and explicit language of sections 385 and 386 of Tbe Code. However, be is now well satisfied that too much consideration was given to tbe language of’ tbe sections, and not enough to tbe reason of tbe law and to other sections of Tbe Code, to-wit, sections 286 and 393 and tbe decisions of tbe Court on tbe subject. Tbe plaintiff in tbe present case filed bis complaint as tbe law directed, and tbe defendants should, under Tbe
The following is a part of the decree of confirmation: “The commissioner Isaac F. Dortch having reported to this
Mrs. Rawles had her homestead laid off to her and has since died.
W. R. Devries, one of the defendants, purchased the land at commissioner’s sale, having been authorized in the decree to do so, and the plaintiffs claim title to that part of the land upon which Mrs. Rawles selected as a homestead through mesne conveyances from W. R. Devries. Isaac E. Dortch, as executor of A¥. T. Dortch, who was the trustee named in the deed of trust, has advertised the 542-acre tract of land for sale, the proceeds to be used towards the payment of the balance of the debt mentioned in the deed of trust after the application of the proceeds of the sale of the land by the Court’s decree. The ground upon which he claims the right to sell the property is that this Court, in the case of Swift v. Dixon, 131 N. C., 42, has decided that W. R. Devries got no title to the land at the commissioner’s sale and that the deed of trust is still valid and subsisting. In that case it was decided that Ann S., the wife, was not a party to the suit of the foreclosure proceedings on the ground that there was no connection between the first summons in that proceeding and the last one.
The reasonable and fair interpretation of that decision of the' Court is that Devries did not get the title of the wife Ann S., but it does not follow that he did not get the hus