Thompson v. . Cox

53 N.C. 311 | N.C. | 1860

The statute, chapter 46, sec. 47 Rev. Code, requires that "the heirs and devisees or other persons interested in said estate" shall be made parties to the petition of an executor or administrator to sell real estate. We think it obvious that the words "or other persons interested in said estate" were intended to embrace the assignees of an heir or devisee, that is, their heirs or devisees or persons taking by purchase or alienation within two years after the qualification of an executor or letters of administration granted; which conveyances are made void against creditors or executors and administrators by section 61, and do not embrace the creditors of a deceased debtor; for:

1. They are represented by the executor or administrator who made the application for the license to sell the real estate for their benefits, and the only adversary interest is that of the heir or devisee, or their assignees.

2. The creditors may not be known or their debts ascertained.

3. Creditors have no direct interest in the estate, and can only reach it by charging the executor or administrator with the proceeds of the sale as assets.

There is no express provision in the statute requiring the sale made by an executor or administrator to be reported to the court and be confirmed. It may be that section 49, which omits the word "license" and substitutes that of "decree," and requires "that the title shall be made to the purchaser by such person, and at such time as the court shall prescribe," furnishes sufficient ground for the interference that the sale ought to be reported to and confirmed by the court; yet, in the absence of some express provision, we are not at liberty to carry the construction further, and infer that the fund, in respect to its collection and (314) mode of application, is to be under the control and direction of the court; for by section 51 it is provided, "the proceeds of the sale shall be assets in the hands of the executor or administrator for payment of debts, etc., and applied as though the same were the proceeds of personal estate." It follows that after granting a license or decree of sale, and the order confirming the sale, and to make title to the purchaser is passed, the court has nothing more to do in the matter, and its jurisdiction is at an end.

Having arrived at these conclusions in regard to the construction of the statute, the application to the case under consideration shows that the proceeding cannot be sustained.

Viewed in the light of a petition to open the biddings, there are two fatal objections. No responsible specific offer is made in respect to the amount, and no assurance given that the price will be increased. After the term at which a sale is confirmed, a court of equity in the case of a decree of sale or for partition of an infant's land and the like, where the fund, in respect to its collection, distribution, and application, is still under its control, will not open the biddings; Ashbee v. Cowell,45 N.C. 158; a fortiori the court cannot do so in a case where, after passing the order of confirmation, etc., its jurisdiction is at an end.

Viewed in the light of a petition to rehear, it cannot be entertained, because the petitioners were not and ought not to have been parties to the original proceeding. One who is not a party cannot appeal, or petition to rehear, or file a bill of review. This is settled, according to the practice of the courts, and no precedent to the contrary can be found.

Viewed in the light of a bill in equity to convert the purchaser into a trustee, on the allegation of a fraudulent collusion between him and the administrator to suppress competition — buy the land at a sacrifice and divide the spoils, and on the footing of fraud, to hold them liable for the actual value of the land, instead of the price at which it was sold, the proceeding cannot be entertained; because the county (315) court, in which it originated, had no such equity jurisdiction. It has general original jurisdiction in cause of a civil nature at the common law; its equity jurisdiction is limited, and depends on specific statutory provisions (Leary v. Fletcher, 23 N.C. 257), e. g., "petitions for filial portions, legacies, and distributive shares, matters relating to orphans, idiots, and lunatics, and the management of their estates." Revised Code, chap. 31, sec. 5.

Whether by force of section 53 of the statute under consideration, which subjects to sale, on the application of an executor or administrator, "all rights and interests in land which may be devised or would descend to the heirs, and all such other interests in real estate as would be liable in a court of equity, to be applied in discharge of debts," has the effect of giving jurisdiction to the county court in such cases, is a question not now presented; but it is certain that these matters are peculiarly fit to be dealt with by a court of full equity powers, and the interests of all parties will be best protected by having the rights declared by a decree in a court of equity before the land is exposed to sale. This section, however, has no application to the case before us; the powers of a court of limited jurisdiction cannot be enlarged by implications.

PER CURIAM. Affirmed.

Cited: Evans v. Singletary, 63 N.C. 206; Lovinier v. Pierce, 70 N.C. 171;Peterson v. Vann, 83 N.C. 120; Bevers v. Park, 88 N.C. 459;Dickens v. Long, 109 N.C. 171; Austin v. Austin, 132 N.C. 266.

NOTE. — Since the last term, HON. M. E. MANLY, who had received the appointment of judge of the Supreme Court from the Governor, adinterim, to the Superior Court bench, by the Governor, were permanently elected to that office by the Legislature.

HON. GEORGE HOWARD, JR., and HON. R. S. FRENCH, who had been appointedad interim to the Superior Court bench, by the Governor, were permanently elected to that office by the Legislature.

[EDITORS' NOTE: THIS PAGE IS BLANK.]

(317)