Phillips v. Denton, 158 N.C. 299 (1912)

March 6, 1912 · Supreme Court of North Carolina

158 N.C. 299

W. K. PHILLIPS et al. v. SHERROD DENTON et al.

(Filed 6 March, 1912.)

1. Executors and Administrators — Sale to Make Assets — Lost Papers — Entries of Records — Regularity of Proceedings — Evidence —Judgment—Collateral Attack.

When the original papers in proceedings by an administrator to sell lands of the deceased to pay debts have been lost, the regularity of the proceedings may be established by entries thereof on the minute docket of the court, and when therefrom it is made to appear that the parties were properly before the court, minors being represented by guardians acl litem, and in all other respects the proceedings were conducted according to the due course and practice of the courts, the judgment entered cannot be collaterally attacked.

2. Executors and Administrators — Sale to Make Assets — Lost Papers — Entries of Record — Regularity of Proceedings — Evidence Sufficient.

The validity of a deed made by an administrator in proceedings for the sale of lands to make assets to pay debts being in controversy, and it being shown that the original papers had been lost, the entries on the minute docket of the court Held sufficient to sustain the regularity of the proceedings, which show the appointment of the administrator, who gave a satisfactory bond, and qualified; his account of sale of the land, which was received and ordered recorded; his charging himself with the proceeds of sale of the land in his final account; that service was admitted of the petition to sell the lands, the prayer was granted and decree filed, and that the report of sale was returned and confirmed.

3. Deeds and Conveyances — Dower Excluded — Definite Description— Evidence Sufficient.

When it appears that the deceased owned but one tract of land, which the administrator sold and conveyed in proceedings to pay his debts, subject to dower, and the deed described the land as that from which the dower tract was taken, the allot-^ ment of the dower may be examined to ascertain the land intended to be conveyed; and it therein appearing that both the dower tract and the lands from which it was taken were described by metes and bounds, these descriptions are sufficient to admit of parol identification of the lands thereunder.

4. Executors and Administrators — Sale to Make Assets — Deeds and Conveyances — Recitation of Powers.

Where an administrator acts under an order to sell land to make assets to pay debts and in accordance therewith sells the lands and executes his deed to the purchaser, it is not necessary that he recite the order in the execution of his deed for the deed to be valid, for by implication power is conferred by the order.

Appeal from Ferguson, Jat October Term, 1911, of EbaNK-LIN.

Tbis action was brought to recover a tract of land, which was originally owned by Sherrod Denton and was sold by John Ohamblee, his administrator, under an order of court, to pay debts of the intestate. Plaintiffs having proved that the papers in the proceeding for the sale of the land, entitled John Cham-blee, administrator, v. Heirs of Sherrod Denton, had been lost, introduced in evidence the entries in the case on the minutes of the court, as follows:

December Term, 1859 : “Jobn Obamblee is appointed administrator of Sberrod Denton and be enters into bond in tbe sum of $500, witb James Baker and Henry Baber as sureties, wbicb is accepted by tbe court, and be qualifies accordingly.”

March Term, 1860: “Jobn Obamblee makes bis return of account of sale of Sberrod Denton, wbicb is received by tbe court and ordered to be recorded.”

In bis final account, be charged himself witb $131.25, proceeds of sale of land, 16 May, 1860.

March Term, 1860: “Petition to sell land to pay debts. Service admitted. Prayer granted and decree filed.”

June Term, 1860: “Petition to sell land to pay debts. Prayer granted. Decree filed. Eeport of sale returned and confirmed.”

They then introduced a deed from Jobn Obamblee, administrator of Sberrod Denton, to T. H. Mann, reciting a consideration of $131.25, paid by Mann, and conveying to him a tract of land in said county containing, by estimate, 87% acres, 30 of wbicb bad been allotted to Mary Denton, tbe widow of Sber-rod Denton, as her dower. They next offered a deed from T. H. Mann to Jobn Cbamblee, executed six years after tbe first deed. Tbe land in controversy is tbe part of tbe entire tract wbicb was allotted as dower to Mary Denton, she having died before this suit was commenced. Plaintiffs then introduced tbe record of tbe dower proceedings, wbicb showed that tbe petition was filed, a copy of petition issued, N. S. Patterson appointed guardian ad litem for infants, service admitted, prayer granted, writ of dower ordered to be issued, jury ordered, report returned and confirmed. Tbe acceptance of service for -the infant defendants by N. S. Patterson, their guardian, was also indorsed on tbe petition for tbe assignment of dower. A survey of tbe land was ordered in tbe dower proceedings, and tbe report of tbe surveyors showed that tbe tract contained 87 acres, wbicb was described by metes and bounds, and tbe dower land, taken therefrom, contained 29 acres, also described by metes and bounds. Tbe defendants agreed that if parol evidence was admissible to aid tbe description in the administrator’s deed and locate tbe land, and tbe records sufficient to authorize a sale of tbe land to pay debts, tbe judge- should charge tbe jury to answer tbe issue in favor of tbe plaintiffs, it being admitted that tbe deed to Mann covered the locus in quo. The judge being of opinion with the plaintiffs upon the points reserved, instructed the jury to answer the issue accordingly, and judgment having been entered for the plaintiffs upon the verdict, the defendants appealed.

W. M. Person and W. II. Yarborough, Jr., for plaintiffs.

Thomas B. Wilder a/nd T. T. Hides for defendant.

WaleeR, J.,

after stating the case: There is no suggestion of any fraud in this case, nor is it alleged that John Chamblee bought the land at his own sale through T. H. Mann, who acted for him. It appears that the proceeding to sell the land was brought against the widow, who is now dead, and the children of Sherrod Denton, who were then minors and represented by their guardian ad litem. There is enough, in the fragments of the record that remain, to indicate that the proceeding was conducted with regularity. The original papers have been lost, and we will not presume, in their absence, that the court disregarded the rules of procedure and gave its decree without properly guarding the rights- of the defendants. It affirmatively appears that they were represented by a guardian, and the presumption is that the court proceeded in the case according to its usual course and practice. We cannot, in this suit, permit a collateral attack upon the' judgment in that case.

The subject was fully considered by us in Rackley v. Roberts, 147 N. C., 201, and we do not see any substantial difference in the facts of the two cases. If there is any, it is in favor of the validity of the proceedings in Chamblee v. Denton, which the defendants now assail, for there is no allegation of fraud or collusion in the sale of the land, as there was in the case cited. In Rackley v. Roberts, supra, we relied much upon the authority of Sumner v. Sessoms, 94 N. C., 376, in which Chief Justice Smith thus stated the law governing such cases: “A guardian ad litem was appointed for the infant defendant, whose acceptance and presence in court must be assumed, in the absence of any indication in the record to the contrary, from the fact that the court took jurisdiction of the cause and rendered judgment. It is true, the record produced does not show that notice was served on the infant or upon her guardian ad litem, nor does the contrary appear in the record, which, so far as we have it, is silent on the point. The jurisdiction is presumed to have been acquired by the exercise of it, and, if not, the judgment must stand and cannot be treated as a nullity until so declared in some impeaching proceeding instituted and directed to that end. The irregularity, if such there be, may in this mode be such as to warrant a judgment declaring it null; but it remains in force until this is done. The voluntary appearance of counsel in a cause dispenses with the service of process upon his adult client. The presence of a next friend or guardian ad litem to represent an infant party, as the case may be, and his recognition by the court in proceeding with the cause, preclude an inquiry into his authority in a collateral proceeding and require remedial relief to be sought in the manner suggested, wherein the true facts may be ascertained. This method of procedure, so. essential to the security of titles dependent upon a trust in the integrity and force of judicial action, taken within the sphere of its jurisdiction, is recognized in White v. Alberson, 14 N. C., 241; Skinner v. Moore, 19 N. C., 138; Keaton v. Banks, 32 N. C., 384, and numerous other cases, some of which are referred to in Hare v. Holloman, supra, and all of which recognize the imputed errors and imperfections as affecting the regularity and not the afficacy of the judicial action taken.” The proceeding alleged in that case to have been irregular was commenced in 1870, after the adoption of the new procedure. Carter v. Rountree, 109 N. C., 29.

We further said in Rackley v. Roberts: “While it may not be necessary to the decision of this appeal, as we view it, to consider what may be the rights of Mrs. Roberts as an innocent purchaser, for all'the facts in regard to that question are not now before us, it may be well to refer again to the general doctrine settled by this Court, to the effect that, when there is a purchase under a judgment, the purchaser need only inquire if, upon the face of the record, the court apparently has jurisdiction of the parties and the subject-matter, in order to be protected, provided he buys in good faith and without notice of any actual defect,” citing numerous cases. See Glisson v. Glisson, 153 N. C., 185, which was a motion to set aside the judgment. attacked in Rackley v. Roberts. The question is there fully discussed by Justice Brown. His Honor was correct in holding that the proceeding in Chamblee v. Denton supported the judgment in that case and the sale and deed made by the administrator. Coffin v. Cook, 106 N. C., 376.

The description in the deed from Chamblee to Mann was sufficient. In the first place, SO' far as appears, the intestate of John Chamblee owned but one tract of land, and it was his land which was sold to pay his debts. In order to make a valid sale of the whole of it, the allotment of the widow’s dower was first made and then the entire tract sold, subject to this dower. This appears from the language of the deed. The description is of the land from which the dower tract was taken, and this is sufficient reference to the allotment of the dower to permit an examination of it for the purpose of ascertaining what land was intended to be conveyed. When we look into the record of this allotment, we find that the entire tract is described by its metes and bounds, and also the dower tract, and this makes clear and definite the description in the deed. In other words, it appears on the face of the deed that it was the purpose of the parties to convey all the land of Sherrod Denton, except the dower interest, or the life estate of the widow, in the land set off to her in the larger tract, both being described in the proceedings by metes and bounds. The tract conveyed by the deed necessarily adjoined the dower land, the latter having been a part of it. It would not be difficult to locate the land of Sherrod Denton adjoining the dower tract, as he had only one tract of land, even if we disregarded the additional description, “adjoining the land of Rebecca Denton’s old tract, and others,” which increases the certainty of a true location. In the latter view of the description, the ruling of the court is sustained by Perry v. Scott, 109 N. C., 374.

The defendants further contend that the deed of Chamblee, administrator, to Mann does not convey the land, because it fails to recite the power under and by virtue of which it was executed, or to refer to the order of the court directing a conveyance of the land to the purchaser. The same objection was made to the executor’s deed in Cook v. Coffin, supra, and held to be untenable. It was there said that where the executor actually- exercised the power given by an order of the court in the execution of the deed, but failed to recite the order, the implication of the law is that he was acting under authority conferred by the order.

This disposes of all the exceptions which require any special attention.

No error.