Ayers v. Banks, 201 N.C. 811 (1931)

Dec. 16, 1931 · Supreme Court of North Carolina

201 N.C. 811

ANNICE AYERS and KATE ROBINSON v. T. D. BANKS and His Wife, BERTHA BANKS.

(Filed 16 December, 1931.)

Judgments K a — Where guardian admits allegations in action against wards hut acts in good faith without personal interest the judgment is valid.

Where the consideration of a deed is the support of the grantors during the remainder of their lives, and. an action is later brought by them to set aside the deed for failure to perform the consideration, and in the action the grantees, who were minors, are represented by a guardian ad litem, duly appointed, who, knowing tbe facts alleged to be true, answers and admits tbe allegations of tbe complaint, and judgment setting aside tbe deed is accordingly rendered, Meld: in a later action by tbe grantees to set aside tbe judgment, tbe defendant’s motion as of nonsuit is properly allowed, it appearing that tbe guardian ad litem bad acted in good faitb without any personal interest and, there being nothing to impeach tbe validity of tbe judgment, it completely concludes tbe grantees in tbe second action.

Appeal by plaintiffs from Harwood,, Special Judge, at August Term, 1931, of Yancey.

Affirmed.

This is an action to recover of defendants tbe tract of land described in tbe complaint.

From judgment dismissing tbe action as of nonsuit, at tbe close of tbeir evidence, plaintiffs appealed to tbe Supreme Court.

B. W. Wilson and Max 0. Wilson for plaintiffs.

Charles Hutchins and Watson & Fouts for defendants.

CoNNOR, J.

On 15 October, 1921, J. G. Allen and bis wife, by tbeir deed wbieb was duly executed and recorded, conveyed tbe land described in tbe complaint to tbeir daughter, Mirab Green, wife of John S. Green, for ber life, and at ber death, to the plaintiffs in this action, who are tbe daughters of John S. Green and Mirab Green. Tbe consideration for said deed was tbe agreement of John S. Green and Mirab Green to care for and support tbe grantors so long as they or either of them should live. It was not a voluntary deed with respect to either Mirab Green or to tbe plaintiffs, who are the 'granddaughters of tbe grantors, but was executed in consideration of the agreement of tbe father and mother of tbe plaintiffs to care for and support the grantors.

After the execution and delivery of tbe deed, John S. Green and Mirab Green failed and refused to perform tbeir agreement with the grantors to care for and support them. On 15 May, 1922, J. H. Allen and bis wife, tbe grantors in said deed, brought an action in tbe Superior Court of Yancey- County for its cancellation and for judgment that they were tbe owners of tbe land described therein, and that the grantees had no right, title or interest in said laud. Tbe plaintiffs in this action, together with their father and mother, John S. Green and Mirab Green, were defendants in said action. Upon application to tbe court, John S. Green was appointed guardian ad litem of the plaintiffs, and filed an answer to tbe complaint in tbeir behalf. In this answer, which was duly verified, he admitted all the allegations of the complaint. Mirab Green filed no answer in said action. Judgment was rendered tbat the deed under which plaintiffs in this action claim the land described in the complaint be and the same was canceled. It was further ordered, considered and adjudged that plaintiffs in that action, to wit: J. G-. Allen and his wife, N. L. Allen, were the owners of the land described in the deed, and that the defendants, to wit: John S. Green, Mirah Green, Annice Green (now Ayers) and Kate Green (now Kobin-son) had no interest therein.

After the rendition.of said judgment, J. G. Allen and his wife conveyed the land described in the complaint to the defendants. Both J. G. Allen and his wife, N. L. Allen, died prior to the commencement of this action. Mirah Green, the mother of the plaintiffs, is now living.

There was no evidence tending to show that the action in which the deed under which plaintiffs claim the land described in the complaint was canceled, was brought or prosecuted otherwise than in good faith; nor was there evidence tending to show that the application for the appointment of John S. Green as guardian ad litem of plaintiffs in said action was fraudulent, or that the answer filed by him as guardian ad litem of the plaintiffs was false or fraudulent. It does not appear that John S. Green, father of the plaintiffs, had any interest in the action which was hostile or antagonistic to the interests of the plaintiffs.

In the absence of evidence-tending- to impeach the judgment rendered by the Superior Court of Yancey County in the action entitled Allen v. Green, the said judgment is conclusive that plaintiffs in this action have no right, title or interest in or to the land described in the complaint. Holt v. Ziglar, 159 N. C., 212, Id S. E., 813, is not applicable in the instant case. In that case it appeared from the record that the guardian ad litem had an interest adverse to the interest of the minors, and that the judgment to which he consented deprived his wards of any interest under the will, and was altogether in his personal interest. Not so in the action brought by J. G. Allen and his wife for the cancellation of the deed under which plaintiffs claim. The guardian ad litem had no interest in the land, described in the deed. The facts alleged in the complaint were necessarily known to him, and he could not have done otherwise than admit them in the answer filed by him as guardian ad litem. IJpon these admissions, the court rendered the judgment, canceling the deed under which plaintiffs claim. There was no error in the judgment. It is

Affirmed.