69 S.E. 3 | N.C. | 1910
This was a motion made in a special proceeding to set aside the final decree theretofore entered, appealed to the Superior Court of Camden and heard in term. The defendants, other than D. T. Pritchard, moved before the clerk of the Superior Court of Camden to set aside and vacate the final decree, report of commissioners and order of partition in the special proceeding for partition, begun in said court on 9 June, of 1898. Upon the affidavits and records offered before him, his Honor found the following facts:
At Spring Term, 1896, of Camden, M. E. Hughes and M. E. Hughes, Jr., commenced action against D. T. Pritchard to recover an undivided two-thirds of that certain tract of land in Camden County, known as the D. L. Pritchard home place of five hundred acres and set up a parol contract and recovered an undivided two-thirds of the said tract of land against the said D. T. Pritchard.
On 9 June, 1898, the said plaintiffs commenced a special proceeding before the clerk of the Superior Court of Camden for partition of said tract of land, in which these plaintiffs alleged that they were owners of two-thirds interest, and D. T. Pritchard the owner of the other one-third, making D. T. Pritchard and all of his children party defendants. That the summons was served upon them by the sheriff of Camden County, on D. T. Pritchard and each of the children personally, (137) by the sheriff reading the summons to each of them, and by leaving a copy of the summons with D. T. Pritchard, with whom the children resided.
D. T. Pritchard was appointed by the court guardian ad litem for the infant defendants and declined to serve. On 23 June, 1898, the court appointed M. B. Hughes, guardian ad litem of William, John Franklin, George, Judson, Sanborn, Iva and Florine Pritchard. That summons was issued for M. B. Hughes, guardian ad litem for said defendants, and he accepted service upon the said summons.
The said M. B. Hughes, guardian ad litem for the infant defendants, filed an answer for them, which is made a part of the findings of this Court. There was no copy of the summons left with either of the infant defendants. It was adjudged by the court that the plaintiffs and D. T. Pritchard owned. the said tract of land as tenants in common, *113 and that the plaintiffs own two-thirds, and defendant, D. T. Pritchard, owns one-third thereof. The commissioners appointed in the order at the time failed to serve and make partition. In lieu of them was appointed John Jacobs, H. D. Sawyer and S. R. Edney, who Went upon the lands, after being duly sworn by the said sheriff, and made division of said lands, and filed their report with the clerk of the Superior Court.
That the report of the commissioners remained on file from 30 August, 1898, until its hearing on 21 November, 1898. That notice was served on each of the defendants personally, no copy being left with any of the infant defendants, at which time defendants appeared and filed exceptions to the confirmation of the report. Said objections are made a part of the findings of this court.
Objections were overruled.
"That afterwards counsel was employed and appeared in the name of all the defendants, who gave notice of appeal, and the same was appealed to the Superior Court at term. The court finds the ages of the infant defendants as set out in the petition for partition of said lands in this cause.
"Upon the hearing of the appeal before Coble, J., he found the facts and filed his judgment, which is made a part of the findings of this Court. Upon the foregoing findings, the court is of the opinion that the infant defendants under fourteen years of age were not (138) properly served and are not bound by the judgment. And that the interest of D. T. Pritchard and the infant defendants were adverse.
"It is, therefore, ordered and adjudged by the court, upon motion of H. S. Ward and W. A. Worth, that the judgment be vacated as to the infant defendants, who at the time of the alleged services, to wit, on 11 June, 1898, were under fourteen years of age, and that the plaintiffs pay the cost of these proceedings, to be taxed by the clerk of this court."
It further appears, from the petition filed on 13 June, 1898, that the plaintiffs, as petitioners, alleged that the plaintiffs and defendant, D. T. Pritchard, were tenants in common of the land described therein, the plaintiffs owning two undivided thirds and the said D. T. Pritchard owning one undivided third; that the land was capable of actual partition; that the plaintiffs desire to have their said part set apart to them in severalty; that Mary E, Hughes, Sr., owns a life estate in the two-thirds part, and Mary E. Hughes, Jr., owns the remainder in fee of the two-thirds part; that the defendant Alice, is the wife of D. T. Pritchard and the other defendants (eleven in number) are their children and heirs at law of D. T. Pritchard; of these, four, whose names are given were over twenty-one years of age, three under twenty-one, but over *114
fourteen, and four under fourteen years of age. The summons was served upon the defendant, as appears by the return of the sheriff, in the manner found by his Honor. Prior to the institution of the special proceedings, the plaintiffs had brought suit and it had been ended by a final judgment (
It is further contended by the plaintiffs that the interests of the infants under fourteen years of age were identical with the other children of D. T. Pritchard, some of whom were adults and others infants over fourteen, who were brought into court by proper service of summons, and there being this identity of interest, the principle of class representation would apply, and the alleged irregularity in the proceedings would be cured. This is an extension of the doctrine of class representation beyond the limitation which we think this Court has placed upon it. In Card v. Finch,
Our conclusion is that the judgment of his Honor in setting aside the judgment complained of in behalf of these infants, should be affirmed upon the facts of the case as presented, because (1) the summons was irregularly served upon them, (2) according to the ages given in the petition filed in the special proceedings, three, certainly, and probably all of them, are still minors, (3) they had a meritorious defense in that, for the purposes of this motion, it sufficiently appears that they *121
had an equitable estate in one-third undivided interest in the land sought to be partitioned, (4) that no real defense was made for them by the guardian ad litem, (5) under the doctrine of estoppel, which applies to proceedings in partition, as held by this Court in Buchanan v. Harrington,
Affirmed.
Cited: Holt v. Ziglar,
(148)