44 S.E. 113 | N.C. | 1903
In 1878 David Vanhorn and wife executed a deed for the land sued for in this action, to Nancy Smith, a married woman, mother of the plaintiff. Vanhorn died intestate 1884. In 1885 his administrator filed a petition before the clerk of the Superior Court of Burke against the heirs at law of David Vanhorn (including Mrs. Nancy Smith), to sell intestate's lands to pay debts. No (601) answer was filed by Mrs. Smith. An order of sale was made and the two tracks in controversy were sold to William Vanhorn. The proceeding was in all respects regular, except that upon the coming in of the report of sale, notice was issued to the defendants in said proceeding to show cause at the courthouse in Morganton on 23 December, 1885, why the sale should not be confirmed. Copies of this notice were served on Waits Smith and wife, Nancy, on 5 December, 1885. In response to said notice the said Waits and Nancy Smith, on 22 December, 1885, filed an answer in which they alleged that as to Lots 2 and 5, being the lots in controversy in this case, "David Vanhorn did not die seized of the said two tracts, but had sold the same to the feme respondent for valuable consideration by deed duly probated and delivered and now recorded, long before his death. That the feme respondent, by virtue of said deed, is owner in fee of said two tracts of land." On 24 December an order was made in the cause reciting as follows: "This cause coming on to be heard this day, by consent, and it appearing that the administrators of David Vanhorn have sold the first, second, third, fourth, and fifth tracts of land described in the petition in manner and form as follows, to wit, . . . And it further appearing that notice was issued to all of the defendants except Waits Smith and wife, Nancy Smith, to show cause, on 23 December, 1885, why said sale should not be confirmed, and notice having issued to Waits Smith and wife, Nancy Smith, to show cause, on 26 December, 1885, why said sales should not be confirmed, the said last-named defendants having filed an answer to said notice and said sales, from the `report of administrators,' and the answer of said defendants appearing to be reasonable, and no sufficient cause being shown why said sales should not be confirmed: It is now, on motion of I. T. Avery, attorney for plaintiffs administrators, ordered, adjudged, and (602) decreed that said sales be in all respects confirmed." The order further directed the administrators to execute deeds to the purchasers.
This cause was heard before his Honor, Judge Justice, upon a motion to restrain the defendants from cutting timber on the said tracts of *424 land in controversy, on 20 January, 1903. His Honor made the following order: "I find from proofs by affidavit and deed offered by plaintiff, and the affidavits and copy of record and deeds offered on the part of the defendant, that the plaintiff has failed to show a prima facie title to the land in controversy, the plaintiffs being estoppel by the record offered by defendant to claim title to said land against the defendants." His Honor proceeds to refuse the motion for an injunction and requires the defendants to execute a bond conditioned to pay plaintiffs such damages as they may recover in this action. The plaintiff appeals.
We are of the opinion that his Honor's ruling is correct. The petition alleges that David Vanhorn died seized of the land in controversy. Nancy Smith was a party to this petition and filed no answer. Judgment was thereupon rendered directing a sale of the land. This judgment was strictly in accordance with the allegations of the complaint, and until vacated is conclusive upon the parties thereto of the facts alleged in the petition and found to be true. The Court could not in this proceeding inquire into or make any order affecting the integrity of the judgment. Syme v. Trice,
The plaintiff suggests that there is nothing in the record to identify any of the land therein mentioned as the tracts sued for, or to have put Mrs. Smith on notice that her lands were sought to be sold in that proceeding. The complaint describes the land in controversy, and the defendant expressly claims title to the same land in the proceedings referred to. His Honor heard the case upon this assumption, (604) that these were the lands in controversy, and we see nothing to suggest the contrary.
Judgment affirmed.
Cited: Card v. Finch,
