Glisson v. Glisson, 153 N.C. 185 (1910)

Oct. 12, 1910 · Supreme Court of North Carolina

153 N.C. 185

MARY J. GLISSON, Administratrix of Daniel Glisson, v. H. J. GLISSON et als.

(Filed 12 October, 1910.)

Executors and Administrators — Sales—Judgments—Motion to Set Aside — Reasonable Time — Pleadings — Prima Facie Case-— Coverture — Infants—Service.

A decree and confirmation of sale by an administrator of the deceased, in proceedings to sell lands to make assets, will not be set aside as against a Kona fide purchaser for value, upon motion of petitioners, claiming, as heirs at law, that they were infants at the time and not duly served with process, if not made within a reasonable time, and in the absence of allegation of such facts as will make out a prima facie case that they had a valid defense to the sale of the lands in the original petition to sell. The statute of limitations for the commencement of actions is not applicable to the decision of such cases, and the coverture of female defendants is immaterial.

Appeal from Guión, J., at the February Term, 1910, of Dup-LIN.

Motion in the above cause to vacate and set aside the decree of sale and confirmation entered in above cause 9 February, 1883, in behalf of Kate Rackley, Florence Glisson and Theodocia Spellman. Issues of fact were submitted to a jury at February Term, 1910, of the Superior Court of Duplin County.

1. When was the petitioner Kate Rackley born? Answer: 1862.

2. Were the petitioners Kate Rackley, Florence Glisson and Theodocia Spellman served with summons in the special proceedings to sell the land of Daniel Glisson to make assets to pay debts, entitled Mary Glisson, admrx., v. Florence Glisson et als. ? Answer: No.

3. Were the petitioners Florence Glisson and Theodocia Spell-man married prior to tbe institution of tbe action to sell land to make assets, and were tbeir husbands living at tbe time? Answer: Yes.

4. Were tbe other devisees under tbe will of Daniel Glisson and children of Robert Glisson served with summons in tbe action of Mary Glisson, admrx., to sell tbe land of Daniel Glis-son? Answer: No.

5. Did E. M. Roberts, in good faith and without any notice of any actual defect in tbe proceedings under which tbe land described in this proceeding were sold, buy said land at such sale ? Answer: Yes.

Tbe court charged tbe jury that if they believed tbe evidence they would answer tbe issues and each of them as found in the' record. To tbe submission of tbe fifth issue and tbe charge upon it tbe petitioners excepted, and from tbe ruling ’and judgment of tbe Court appealed.

Kerr & Gavin for petitioners, appellants.

Stevens, Beasley & Weelcs for appellee, Mrs. F. M. Roberts.

Bbown, J.

Tbe case of Rackley v. Roberts, 147 N. C., 204, is an original action brought by petitioner Kate Raekley to set aside tbe decrees, sale, deed, etc., made in this special proceeding of Glisson v. Glisson upon tbe ground of fraud.

In tbe opinion it is held that tbe proceeding cannot be attacked collaterally in that case and tbe decrees in it set aside for irregularity. It is also held that no issue of fraud was submitted in due form, as it should have been, and that no evidence of fraud was set out in tbe record.

Tbe cause was sent back for a new trial and we presume is pending in tbe Superior Court of Duplin County.

Tbe petitioners now move in tbe original special proceeding to set aside tbe decrees therein for irregularity.

In tbe view we take of tbe matter it is unnecessary to consider tbe specific assignments of error, for upon tbe entire record tbe petitioners are not entitled to have tbe decree now vacated for irregularity. It appears that while petitioners were not served with summons a guardian ad litem was appointed for them who employed reputable counsel who appeared in behalf of these petitioners, then infants, and filed an answer raising issues which were transferred to the Superior Court for trial.

The decree of sale is not in this record, but evidently a decree was entered, for the sale was made and confirmed by decree of 6 February, 1883. The deed from the administratrix Mary Glisson, to the purchaser Mrs. F. M. Roberts is dated 16 February, 1883, and recites the payment of the purchase money. Mary Glisson died in 1903. The petitioner Kate Rackley was born in 1862, Theodocia Spellman was born in 1857 and Florence Glisson was born in 1859. The fact that they were married at the time the special proceeding was commenced is immaterial. We are not now dealing with statutes of limitation affecting the commencement of actions.

An irregular judgment, or decree, such as the one sought to be set aside, is one entered contrary to the method of procedure and the practice of the court. A motion in the cause is the proper remedy, and may be made at any time within a reasonable period. This is held in many cases. Carter v. Rountree, 109 N. C., 29, and cases cited.

It is true that courts have power to connect their records and set aside irregular judgments at any time, but it is settled practice that they will not exercise the power where there has been long delay or unexplained and unwarranted laches on the part of those seeking relief against the judgment. Harrison v. Hargrove, 109 N. C., 346; Carter v. Rountree, supra. The decree was made 9 February, 1883, and this motion made 16 December, 1908. The administratrix had died and a quarter of a century elapsed before petitioners moved in this cause. This is certainly a most unreasonable delay and we are unable to discover anything in the record which excuses it. Coverture is no excuse, and even that would not help Theodocia Spellman who became discovert in 1885.

Not only do petitioners fail to offer any satisfactory excuse for such laches, but they fail to allege meritorious grounds for the relief asked.

It is true they vaguely allege in their petition, “That there were very few valid and bona fide debts against the estate of the said Daniel Glisson, and tbis affiant verily believes that tbe personal property would bave paid said debts.” But on tbe bearing tbey offered no evidence whatever to tbe court in support of such belief and nothing to show that tbey bad any defense against tbe original petition to sell tbe land for assets, even if tbe decree should be set aside and petitioners permitted to answer. Tbey offered nothing tending to controvert tbe allegations of tbe original petition.

The petitioners should bave set forth facts instead of vague and general allegations and presented them to tbe court showing prima facie a valid defense, and tbe validity of that defense is for tbe court and not' for tbe petitioner to determine.

Unless tbe Court can now see reasonably that defendants bad a good defense, or that tbey could make a defense that would affect tbe judgment, why should it engage in tbe vain work of setting tbe judgment aside. Jeffries v. Aaron, 120 N. C., 169; Cherry v. Canal Co., 140 N. C., 423.

Tbe administratrix is now dead and tbe evidences of tbe indebtedness of Daniel Glisson doubtless destroyed or lost after a lapse of 25 years most extraordinary circumstances must be shown to justify us in setting aside tbe decree of sale for irregularity.

Affirmed.