| N.C. | Dec 23, 1898
Lead Opinion
This proceeding is for the purpose of collecting the balance of the purchase price of certain land bought by the defendant, under an order of the Clerk to sell said land for assets in an ex parte petition by the administrator and the heirs, entitled ‘ ‘M. Williams and others ex parte. ” One of the heirs was a minor and appeared by his guardian and next friend, who was the administrator of the intestate, and was appointed commissioner to sell the land. The sale was made, and approved and confirmed by the Judge of the Superior Court, and a deed ordered to be made as soon as the purchase, price was paid by the defendant who was the purchaser. The sale was in 1883, and the defendant has been in possession ever since, receiving the profits, paying taxes, and has paid a part of the purchase price.
Before the petition was filed, the administrator guardian of his minor son, the other heirs at law and the defendant entered into an agreement: 1. That the father would surrender his rights as tenant by the cur-tesy. 2. That the defendant would purchase the land at the stipulated price. 3. That the defendant’s debt against the estate should be a credit on the price bid for the land. 4. That the land should be sold for assets. After this notice to defendant of a motion in the proceeding for a judgment for the balance, a reference was had to ascertain the balance due, charging the de
In apt time, the defendant objected to the rendition of judgment against him on the ground that he could not get a good title because of irregularities in the proceeding, that is to say, that the administrator was also commissioner to sell and guardian of the minor, and because the minor heirs of A. B. Withers were not made parties.before the confirmation of the sale. There is no force whatever in the objection that the administrator was also commissioner to make sale. It was irregular that he should represent the minor as guardian, but irregularities do not always render the judgment void.
It does not appear that A. B. Withers during his life time made any objection to the order of sale, and it is to be presumed that he was content therewith. ' In adversary proceedings, the parties are at arm's length and each one fights for victory. In such cases, if minors are parties without guardian, general or special, it is irregular, and on arriving at maturity they may reject or accept at their option. But in ex parte proceedings, they must be represented by a guardian or next friend; and the law has wisely provided further protection by requiring that no order or judgment of the Clerk on the merits of the case, capable of being prejudicial to the infant, shall be valid “unless submitted to and approved
There is no suggestion or contention that any unfair advantage in the sale, confirmation, or elsewhere in the course of the proceeding, was taken. The petitioners performed their agreement in all respects, and now demand that the defendant shall do the same.
“Even an irregular judgment, where it appears from the record or otherwise that the infant suffered no substantial injustice, will not be set aside.” Syme v. Trice, 96 N. C., 246. Where there is no suggestion that the sale was unfair or that the land did not. bring its full value or that the parties were prejudiced, the Court will not set aside the sale where the. defendant died before confirmation and his heirs were not made parties to the action. Everett v. Reynolds, 114 N.C., 367" court="N.C." date_filed="1894-02-05" href="https://app.midpage.ai/document/everett-v--reynolds-3645137?utm_source=webapp" opinion_id="3645137">114 N. C., 367.
The sale was made 15 years ago, and if the defendant believed the record would not protect him, he should -have made his fears known at an earlier day.
Affirmed.
Concurrence Opinion
concurring: I concur in the opinion of the Court that the judgment ought to be affirmed. And this for the reason that the defendant ought to relieve himself entirely of his purchase of the land and without tendering the amount he really owed after the allowance of his counterclaim set up in his answer. The case of Everett v. Reynolds, 114 N.C., 367" court="N.C." date_filed="1894-02-05" href="https://app.midpage.ai/document/everett-v--reynolds-3645137?utm_source=webapp" opinion_id="3645137">114 N. C., 367, does not apply in this case, in my opinion, for the reason
Lead Opinion
This proceeding is for the purpose of collecting the balance of the purchase price of certain land bought by the defendant, under an order of the clerk to sell said land for assets in an ex parte petition by the administrator and the heirs, entitled "M. Williams and others ex parte." One of the heirs was a minor and appeared by his guardian and next friend, who was the administrator of the intestate, and was appointed commissioner to sell the land. The sale was made and approved and confirmed by the judge of the Superior Court, and a deed ordered to be made as soon as the purchase price was paid by the defendant, who was the purchaser. The sale was in 1883, and the defendant has been in possession ever since, receiving the profits, paying taxes, and has paid a part of the purchase price.
Before the petition was filed, the administrator guardian of his minor son, the other heirs at law and the defendant entered into an agreement: (1) That the father would surrender his rights as tenant by the curtesy. (2) That the defendant would purchase the land at the stipulated price. (3) That the defendant's debt against the estate should be a credit on the price bid for the land. (4) That the land should be sold for assets. After this notice to defendant of a motion in the proceeding for a judgment for the balance, a reference was had to ascertain the balance due, *304 (423) charging the defendant with the purchase price and crediting him with all he had paid out and with the amount of his claim against the estate according to agreement, and, for the balance thus ascertained, judgment was entered and the defendant appealed to this Court. The plaintiff succeeds the original administrator, and A. B. Withers, one of the adult petitioners, died, leaving minor heirs, after the sale was ordered, but before it was confirmed. There was no objection made by any one to the sale and its confirmation.
In apt time, the defendant objected to the rendition of judgment against him on the ground that he could not get a good title because of irregularities in the proceeding, that is to say, that the administrator was also commissioner to sell and guardian of the minor, and because the minor heirs of A. B. Withers were not made parties before the confirmation of the sale. There is no force whatever in the objection that the administrator was also commissioner to make sale. It was irregular that he should represent the minor as guardian, but irregularities do not always render the judgment void.
It does not appear that A. B. Withers, during his lifetime, made any objection to the order of sale, and it is to be presumed that he was content therewith. In adversary proceedings the parties are at arm's length and each one fights for victory. In such cases, if minors are parties without guardian, general or special, it is irregular, and on arriving at maturity they may reject or accept at their option. But inex parte proceedings they must be represented by a guardian or nextfriend; and the law has wisely provided further protection by requiring that no order or judgment of the clerk on the merits of the case, capable of being prejudicial to the infant, shall be valid "unless submitted to and approved by the judge of the court, in or out of term." The (424) Code, section 286. This is an important duty on the part of the circuit judges. The Code, section 1439. These duties must be presumed to have been performed before the judge approved and confirmed the sale. After fully considering the record, we are not moved to disturb the judgment.
There is no suggestion or contention that any unfair advantage in the sale, confirmation, or elsewhere in the course of the proceeding was taken. The petitioners performed their agreement in all respects, and now demand that the defendant shall do the same.
"Even an irregular judgment, where it appears from the record or otherwise that the infant suffered no substantial injustice, will not be set aside." Syme v. Trice,
The sale was made 15 years ago, and if the defendant believed the record would not protect him, he should have made his fears known at an earlier day.
Affirmed.
Concurrence Opinion
I concur in the concurring opinion.