41 N.C. 16 | N.C. | 1849
The facts of the case are sufficiently set forth in the opinion delivered in this Court. Archibald Green died in 1824, leaving a widow, (17) Margaret, and three children, Mary, Martha, and Rhoda, the plaintiffs. By his will he devised to his wife, Mary Green, for her life, among other things, a negro woman, Betty, and her increase, and, in a subsequent clause, he directs that all the estate he has lent to his wife shall after her death be equally divided between his children. Betty had a child named Matilda, who has since had two children, Missouri and Charles. Mrs. Green, the widow, intermarried with Asa Powell, who thereupon became the guardian of the female plaintiffs. Mrs. Powell and Asa Powell are both dead, and the defendant is the administrator, with the will annexed, of the latter, and has taken into his possession the negroes Betty, Matilda, Missouri, and Charles. The bill charges that As a Powell, while he was their guardian, caused the girl Matilda *26 to be put up to sale at his own house, and caused her to be bid in for him by one Uriah Smith at the price of $50; that the possession never was changed, she remaining in the possession of Powell up to the time of his death; that this sale was fraudulent, and made by their guardian in violation of his trust, and under pretense of an order of the county court of Halifax County. It further charges that, if such order was obtained, it was irregular and void, not having been obtained on petition in writing, but by motion. The bill further alleges that the plaintiffs demanded the said negroes of Asa Powell and of his administrator, the defendant offering to pay back the sum of $50, "with which the said Powell seems to have charged himself in his account as guardian returned to court." The bill prays that the defendant may be decreed to surrender the negroes and account for their hire since the death of their mother, Mrs. Powell.
The answer alleges that the girl Matilda was born during the lifetime of the testator, Archibald Green, between the making of his will (18) and his death, and that he therefore died intestate as to her; and that in 1847 his intestate obtained an order from the county court to sell her for the purpose of division among the plaintiffs, his wards, she being the only property undisposed of by the will of Archibald Green. The answer further alleges that the plaintiff Benjamin Hawkins, in right of his wife, Mary, in March, 1837, with a full knowledge of all the circumstances, received his share of the proceeds of the sale of Matilda, and in January, 1838, Thomas Weldon, in right of his wife, Martha, settled with Asa Powell, as guardian of his wife, and received, with the same full knowledge of the circumstances, his share of the proceeds of the sale. It further alleges that after the death of Asa Powell the plaintiff Thomas King brought suit against the defendant, as the personal representative of his intestate, upon his guardian bond, and obtained judgment against him for what was due to him in right of his wife, Rhoda; and that in this judgment was included his share of the sale of Matilda; and that the said King had full knowledge at the time of all the circumstances.
Replication was taken to the answer.
From the evidence in the cause the negro girl Matilda was born between the making of the will and the death of the testator, Archibald Green, and, there being no residuary clause, she is undisposed of, and, as to her, the testator died intestate.
The plaintiffs allege that the sale of the girl Matilda by their guardian, Asa Powell, was void, first, because there was no sufficient order of court authorizing a sale, and secondly, because the guardian was the real purchaser. It is not important that any opinion should be expressed as to *27 the sufficiency of the order of sale made by the county court. Asa Powell acted under it, sold the girl Matilda, and became the purchaser himself.
The order of sale was made in November, 1827, and the sale made before February, 1828, and this bill was filed in the Fall of 1844 — a period of sixteen years. The plaintiffs have not only delayed (19) for that length of time to make known their dissatisfaction, but they have, with full knowledge of the facts, received from Asa Powell their ratable proportion of the price of Matilda. It was in their power to repudiate the sale or to affirm it. They have chosen the latter. From the exhibits filed in the case it appears that in the inventory of the estate of Archibald Green, returned to May Court, 1826, of Halifax, the negro girl Matilda is inventoried as not disposed of by the will. She was sold under the order of court and a return day made of the sale to February Term, 1828. The returns of the guardian, Asa Powell, are regularly made down to February Term, 1837, when, according to the guardian's account, he owed his ward Mary Green $36.15, and on 4th March he paid in full to the plaintiff Benjamin Hawkins what was due him as her husband, $65.97; and on 24 January, 1838, he paid to the plaintiff Thomas S. Weldon, in right of his wife, Martha Green, $29.12 1/2, as being what was due to her at that date. The defendant states in his answer that these same embraced what was due to the wards Mary and Martha of the price of Matilda. The receipts are in full, and when given, his wards were married women. His guardianship had ceased. Their husbands had a right to receive what was due them; and, unexplained, the receipts were a discharge to the guardian. It is to be recollected, the object of the bill is to procure a conveyance to the plaintiffs of the slave Matilda and her children; and the above statement is no further important than in showing that the plaintiffs have, by receiving their shares of the price of Matilda, adopted their guardian's sale of her. To the same end the defendant has filed, as an exhibit, a copy of the record of a suit brought by the plaintiff Thomas C. King and (20) his wife, Martha, against the defendant, as the administrator of Asa Powell, upon the guardian bond given by Powell. That action was brought to the May Term, 1844, of Halifax County Court. In the progress of the cause the guardian's accounts were referred by the court to the clerk. His report was duly returned and confirmed, and according to it the jury returned a verdict in favor of the plaintiffs, assessing their damages to the amount of the sum reported due. This verdict concludes the plaintiff King and his wife, Rhoda.
PER CURIAM. The bill dismissed with costs.
Cited: Harrell v. Lee,
