Den ex dem. of Leary v. Fletcher, 23 N.C. 259, 1 Ired. 259 (1840)

Dec. 1840 · Supreme Court of North Carolina

23 N.C. 259, 1 Ired. 259

DEN ex dem. of J. H. LEARY and WIFE vs. FRANCIS FLETCHER.

The County Court, in proceeding under the act of 1789, (Rev. Stat. c. 63, s. 11,) authorizing an order to issue to a guardian empowering him to seil the property of his ward for payment of the debts of the ward, must first ascertain that there are debts due by the ward which render the sale of the property expedient; and the court must also select the part or parts of his property, which can be disposed of with least injury to the ward.

Therefore an order of the'County Court in the following words; “ Ordered that A. W. (the guardian) have leave to sell as much of the lands belonging to the orphans of Stephen Mullen, decM, as will satisfy the debts against said deceased’s estate” is unauthorized by law, and void; and a purchaser under a sale, made by the guardian in pursuance of such order, acquires no title.

This was an action of Ejectment, tried at Pasquotank Superior Court of Law, at Spring Term, 1840, before his hon- or Judge Pearson, for certain lands described in the declaration, of which defendant admitted he was in possession.

It was admitted that the lands in dispute had once belonged in fee simple to the father of the plaintiff Elizabeth, and descended to her as his heir, and defendant had purchased the same of her guardian, as hereafter set forth at a fair price, and in good faith; and the only question was whether the guardian could lawfully sell the land, under the order of the court herein set forth. Addison Whidbee was duly appointed guardian of the plaintiff Elizabeth, and acted as such up to the time of her marriage with the plaintiff John, and obtained the order of the County Court, recited below, under which order he sold and conveyed the lands to the defendant’s father, A. Fletcher.

The defendant proved that Ambrose Knox was the administrator of the father of the plaintiff Elizabeth, from whose father the lands descended, and offered in evidence a judgment against the said administrator, for about $260 and eosts, in which' the plea cf fully administered had been found in favor of the administrator, and the claim prosecuted to against the heirs of the father of the said Elizabeth, one of the lessors of the plaintiff. The defendant further proved that the administrator claimed the sum of elev-1 en hundred dollars, due to him from the estate of his said intestate, more than he had personal assets to satisfy, at the time the order of the County Court was granted and the sale made; but also shewed that his claim was afterwards paid by assets coming to his hands, which at that time were known neither to the administrator nor to the guardian. It also further appeared that the guardian had paid off the judgments out of his own funds, before he had obtained the order of sale. The amount for which the land sold was eighteen hundred and twenty-six dollars and some cents.

The following order of sale from the County Court of Pasquotank was produced in evidence, as the order under which the guardian acted:

Pasquotank County Court — September Term, 1824.

Ordered that Adderson Whidbee have leave to sell as much of the lands belonging to the orphans of Stephen Mullen, deceased, as will satisfy the debts against said deceased’s estate.

Upon these facts, his honor Judge Pearson was of opinion that the order of the County Court was valid, and the sale under the order conveyed the title of the plaintiff Elizabeth.

The jury, in pursuance of the charge of the Judge, found for the defendant. There was a motion for a new trial, which was overruled, and judgment having been rendered for the defendant, the plaintiff appealed to the Supreme Court.

A. Moore for the plaintiff.

Kinney for the defendant.

Gaston, Judge.

The only question in this case is, whether the estate, which the female lessor once had in the premises, was transferred to the defendant under the sale and conveyance of her guardian. This question depends upon the enquiry whether the order of sale, made by the County Court,of Perquimons, did or did not transcend the power of the court. It the court were competent to make the order, the sale under it must be held valid, although the guardian might have sold more than was necessary to effectuate the objects of the sale. The purchaser was bound to look no farther than to his authority, and had no control over the exercise of his discretion, while acting within the limits ol that authority. The power ot the court to make the order, if it exists at all, is derived from the act of 1769, ch. 311, sect. 5, (Rev. Stat. ch. 63, sect. 11.) It seems to us that this act does not confer on the court a general power to make orders of sale, but confers a power, limited in its terms and restricted by its objects, to make orders; to sell designated parts of an orphan’s estate to pay ascertained debts against such estate. The material enactments of it are, that “when a guardian shall have notice of any debt or demand against the estate of his ward, he may apply to the court for an order to sell so much of the personal or real estate of such ward, as may be sufficient to discharge such debt or demand?’ — and such order of court shall “ particularly specify what property may be sold.” It is obvious that the Legislature intended, and therefore we hold that the Legislature required, that the judgment of the court should be exercised in deciding whether there were any debt or demand against the estate of the ward to'render a sale of his property expedient — and if' so, then in selecting the part or parts his property, which could be disposed of with least injury to the ward. The order before us manifestly departs from both these requisitions. If valid, it authorizes the guardian to sell any part he pleases of the ward’s land, which he may deem necessary for the payment of debts against her father’s estate. The court, instead of exercising its own discretion on the subjects, whereon the Legislature required it to act, has undertaken to delegate that discretion to the guardian.

This cannot legally be done. Delegatus non potest delegare.

The judgment below must be reversed, and a venire de novo awarded.

Per Curiam. Judgment accordingly.