Den on demise of Ducket v. Skinner, 33 N.C. 431, 11 Ired. 431 (1850)

Dec. 1850 · Supreme Court of North Carolina

33 N.C. 431, 11 Ired. 431

DEN ON DEMISE OF MARTHA DUCKET & AL. vs. CHARLES W. SKINNER, Jun.

The County Court, outhe petition of the guardian of a certain infant, passed the following order — “Ordered that he, the said W. B., guardian, sell the land of said deceased T. Ii., or so much thereof as will be sufficient to discharge the debts.” Held, that this order was unauthorized and void, and, of course, that a purchaser under it acquired no title.

The case of Leary v Fletcher, 1 Ire. 259, cited and approved.

Appeal from the Superior Court of Law of Perquimans County, at the Fall Term I860, his Honor Judge Caldwell presiding.

In this action of ejectment, the following facts appeared :

Thomas II. Harvey died in 180S, seized of the premises in fee, and left an only child, Mary Eliza, who married under the age of 21 years, and died under coverture, leaving two children, who are the lessors of the plaintiff and were infants when this suit was brought. In May 1809. William Blount was duly appointed the guardian of Mary Eliza Harvey, by the County Court of Perquimans,jjand at the same time the Court passed an order in the words following : “Ordered that he, the said William Blount, guardian, sell the land of said deceased Thomas Harvey, or so much thereof as will be sufficient to discharge the debts.” In pursuance of that order, the premises described in the declaration were sold by the said Blount, at public sale, to a person, under whom the defendant came in, and was in possession at the commencement of this action.

On the foregoing statement, as a case agreed, the cause was submitted in the Superior Court, upon an agree, ment, that, if the Court should be of opinion, the plaintiff was entitled thereon to recover, judgment should be entered for him for the term and six-pence damages and costs; and, if otherwise, that there should be judgment for the defendant. Judgment was given for the plaintiff, and the defendant appealed.

No counsel for the plaintiff.

A. Moore, for the defendant.

Ruffin, C. J.

The case is very defectively stated: omitting, for example, to set forth, that the purchaser did or did not take a conveyance. But it is not material to advert to those considerations, since, supposing the best for the defendant on every thing not stated, it appears affirmatively, that his title is,essentially defective, by reason that the order for the sale was unauthorised and void The case of Leary v. Fletcher, 1 Ire. 259, is a direct au< thority to that point, and renders further discussion of the principle unnecessary.

Per Curiam. Judgment affirmed.