65 N.C. 96 | N.C. | 1871
The proceedings in this case are very irregular, and the sale of the land, and the order upon which it was made ought to be set aside — but the appellants have not chosen the proper remedy.
A petition by an administrator to sell land for the purpose of paying debts, is a special proceeding and belongs to the original jurisdiction of the Probate Court.
Parties injured by such proceedings ought to apply to the Judge of Probate for relief, and if he refuses to act in the matter, or acts erroneously, an appeal will lie to the Judge of the District.
According to the transcript there are many errors in the proceedings but we will notice only a few. *75
1. The order of sale was granted on the 5th of Nov., 1869, the day the petition was filed, and before the parties defendant (98) had been served with process by publication.
2. The Judge of Probate at the time he granted the order of sale, did not upon the proofs required in C.C.P. 89, adjudge that the defendants had been regularly served with process by publication.
3. There was no order appointing Gulick guardian ad litem of the infant defendants. The Court had no right to appoint a guardian ad litem until the summons was properly served — and the appointment must be made as prescribed in C.C.P., sec. 59. The act of Gulick on the day the petition was filed was unauthorized, and as the infant defendants were not represented by a guardian, the proceedings are void as to them.
4. The Judge of Probate acted erroneously in ordering a deed to be made for the land before the purchase money was paid. Such an order is contrary to the course and practice of Courts of Equity in directing judicial sales.
We make these suggestions in order that the proceedings may be properly corrected in the Probate Court and further litigation avoided.
His Honor acted properly in refusing to take cognizance of the matter and his judgment must be affirmed.
Per curiam.
Judgment affirmed.
Cited: Shearin v. Hunter,
(99)