253 N.C. 376 | N.C. | 1960
The purchaser at the sale made pursuant to the court’s order was entitled as against defendants to a writ of possession for the property adjudged liable for the debts of decedent. Alexander v. Thompson, 211 N.C. 124, 189 S.E. 117; Warehouse Co. v. Willis, 197 N.C. 476, 149 S.E. 679; Bank v. Leverette, 187 N.C. 743, 123 S.E. 68; Lee v. Thornton, 176 N.C. 208, 97 S.E. 23; Terrell v. Allison, 21 Wall. 289, 22 L. ed. 634.
The court’s authority to order a sale was limitedi to the property owned by decedent. It could not direct a sale of property owned by his heirs. Defendants cannot now be heard to say they owned and their father did not own the property ordered sold. The decree based on the judicial admissions made by defendants is res judicata. Humphrey v. Faison, 247 N.C. 127, 100 S.E. 2d 524; Franklin County v. Jones, 245 N.C. 272, 95 S.E. 2d 863; Gaither Corp. v. Skinner, 241 N.C. 532, 85 S.E. 2d 909; McMillan v. Teachey, 167 N.C. 88, 83 S.E. 175.
The order of sale was based on the administratrix’s allegation of. ownership and defendants’ admissions. We must interpret these allegations and admissions which resulted in the sale and deed to petitioner as a voluntary conveyance by defendants. What are the rules applicable to determine properties so conveyed? It is well settled that the court must determine as a matter of law what property is conveyed and the boundaries thereof in conformity with the description set out in the instrument conveying title. Where they are located on the ground is a question of fact. Batson v. Bell, 249 N.C. 718, 107 S.E. 2d 562; Brown v. Hodges, 232 N.C. 537, 61 S.E. 2d 603.
The court is charged with ascertaining the intent of the parties. Lee v. McDonald, 230 N.C. 517, 53 S.E. 2d 845; Sugg v. Greenville, 169 N.C. 606, 86 S.E. 695. To ascertain intent it is proper to look at the situation of the parties. Reed v. Elmore, 246 N.C. 221, 98 S.E. 2d 360. All descriptive matter should be considered. Tice v. Winchester, 225 N.C. 673, 36 S.E. 2d 257; Realty Corp. v. Fisher, 216 N.C. 197, 4 S.E. 2d 518.
The land claimed by petitioner admittedly lies inside the courses and distances set out in the pleadings and order of sale. Administratrix did not claim ownership of all of the lands within those boundaries.
Had the petition to sell merely described the land to be sold as the lot and dwelling occupied by N. L. Robertson at the time of his death, that description would have sufficed to identify the property. Self Help Corp. v. Brinkley, 215 N.C. 615, 2 S.E. 2d 889; Gilbert v. Wright, 195 N.C. 165 141 S.E. 577; Carson v. Ray, 52 N.C. 609. That in substance is what is alleged. It cannot be doubted that the defendants so understood. Any other construction would be at variance with the admissions appearing in their answer.
. The pleadings, supplemented, by the order of sale, now estop defendants from asserting that the dwelling was not a part of the property sold because actually within the boundaries of the deed to Cletus Robertson, recorded in D. B. 551, p. 132. The clerk erred in refusing to so hold. This was the legal question which Judge Armstrong directed the clerk to pass on. On petitioner’s appeal from the clerk’s ruling he was entitled to have the erroneous conclusion reversed. There was error in failing to do so.
Apparently no attempt has been made to establish the location of the boundiaries of the lot occupied by N. L. Robertson as his family home. The cause is remanded for this factual determination. When rhe boundaries have been located upon such evidence as either party may desire to offer, the court may, if necessary, issue its writ of possession to put petitioner in possession of the property so located.
Reversed.
