| N.C. | Jan 5, 1867
The petition stated, that in the original cause the petitioner, then an infant, had appeared by guardian and prayed that a tract of land should be sold; upon a report of the sale, at Spring Term, 1859, the same was confirmed, and the Master ordered to collect when the note became due, and upon the payment thereof to make title. At Fall Term, 1860, the Master was ordered to pay the note to the petitioner's *65 guardian; this was done, and it remained still unpaid, and was the property of the petitioner, who was then of age. Upon applying in 1866 to the purchaser for payment, it was refused, and the petitioner was told that title to the land had been made to him by the Master. It also alleged that the petitioner was in danger of losing his money from the insolvency of the parties.
It prayed that the deed might be declared irregular and void; that the debt be declared a lien on the land; and that on default of payment the land be sold, etc., and for further relief.
The answer admitted most of what was stated in the petition, but alleged that the note had been passed by the petitioner, for value, to other parties, and that the defendant did not know whether, at the time of filing the petition, it was in the hands of the (78) petitioner and his property; the deed from the Master, as he was advised, was not made without authority of the court; also, that it was made with the consent of the guardian, who preferred the note to money; the transfer of the note by the Master to the guardian, as he was advised, destroyed the lien, and this effect was strengthened by its receipt by the petitioner, upon coming of age; the answer also alleged that the guardian bond was good for the claim, and it denied that the makers of the note were insolvent.
Replication was taken to this, and at Fall Term, 1866, the cause, by consent, was ordered to be sent to the Supreme Court. The purchase money of one-half of the land, to which the petitioner was entitled, was secured by the bond of Whitaker, with Selby as surety, and also by the title which was retained as additional security.
We do not concur in the position taken on the part of the defendant, that the order made at Fall Term, 1860, that the Clerk and Master deliver the bond to the guardian of the petitioner, so modified the former order as to direct the Clerk and Master to make title to the defendant before the bond was paid. In the absence of an order in express terms to that effect, we can not suppose that it was the intention of the court to relinquish one of the securities and leave the infant, whose interest was under the protection of the court, to depend on the security of the bond alone. Upon what ground could the defendant ask that one of the securities which the court held should be relinquished? He paid nothing, and put nothing in its stead.
There being no order for the Clerk and Master to make title, his deed was irregular and invalid, and the petitioner is entitled *66 (79) still to look to the land as a security for the price which the defendant undertook to pay, and which he has failed to pay.
The idea that the guardian, in prejudice of his ward's interest, could relinquish the security of the land and authorize title to be made, can not be entertained for a moment. Nor can the suggestion, that the defendant and his surety are able to pay the amount of the bond, and if not, that the petitioner may resort to the bond of his guardian, avail anything in the face of the fact, that the defendant has the land of the petitioner, but has not paid for it. This court will see that he specifically performs his contract.
The petitioner is entitled to the relief prayed for.
PER CURIAM. Decree accordingly.
Cited: Rogers v. Holt, post, 110; Walker v. Moody,
Dist.: Fleming v. Roberts,