84 N.C. 182 | N.C. | 1881
The plaintiffs in the present action allege in their complaint that in 1851, Sarah D. Murrill, Daniel R. Ambrose and Mary J. Ambrose, being tenants in common of a certain parcel of land filed their petition in the late court of equity for Onslow county for the sale of the same for partition, when a sale was decreed and made by one Jasper Etheridge, as a special commissioner of the court; that A. J. Murrill who was then the husband of the petitioner, Sarah D, became the purchaser and gave his bond, with surety, to the commissioner for the purchase money, no part of which has ever been paid, and both parties to the note are insolvent; that there was never any decree for title to be made, but still the commissioner had made a deed, and that the said Mary J. Ambrose, after intermarriage with the plaintiff. *183 John F. Murrill, died, leaving the other plaintiffs as her only heirs, and the relief prayed for is, that the plaintiffs may have a lien on the land for their share of the purchase money, that the commissioner's deed be declared void and that the land be sold. When the present action was called for trial, the defendants moved to dismiss it upon the ground that the plaintiffs might have the relief sought in the original action and could not therefore maintain an independent suit, and His Honor being of that opinion dismissed the plaintiffs' action. The plaintiffs then moved the court to treat their action as a motion in the original cause and proceed with it accordingly, which the judge declined to do and the plaintiffs appealed.
Feeling ourselves controlled as doubtless His Honor did by the cases ofCouncil v. Rivers,
No error. Affirmed.