Den on the demise of Bryan v. Manning, 51 N.C. 334, 6 Jones 334 (1859)

June 1859 · Supreme Court of North Carolina

51 N.C. 334, 6 Jones 334

Den on the demise of FRED’K BRYAN et ux et al v. SARAH MANNING.

Where a petition to sell lands, at the instance of a guardian, alleges that the debt is that of the ancestor for which the heir is liable, and the land is described by calling for co-terminous tracts, and the court adjudges, upon the evidence of a competent witness, that the matters alleged in the petition are true, and an order of sale is predicated thereon, it was Held that this was enough to support a sale.

Where the guardian, one of several joint owners of a tract of land, petitioned for the sale of the whole of it, without noticing the existence of another tenant in common, it was Held that a purchaser obtained title for the part of the petitioner, but that the sale was void as to the other moiety.

Where a declaration in ejectment contains but one count, and that is upon the joint demise of two persons, of whom only one has title, it was Held that it could not be sustained.

Action of ejectment, tried before Ellis, J., at tlie Spring Term, 1858, of Martin Superior Court.

Hillary Whitehurst, at his death in 1836, was the owner of the land in controversy, and the lessors of the plaintiffs are his children and heirs-at-law, suing within three years after their arrival at full age. One Thomas Howell, at October Term, 1836, of Martin County Court, administered on the estate of the said Hillary, and also, became the guardian of the feme plaintiff, Mary, his daughter. John IT. Whitehurst, the other lessor of the plaintiff was not then born, but was born within nine months after the death of his father, and before the institution of the proceedings to sell the land. These proceedings were a petition at January Term, 1837, of which the following is a copy: “The petition of Thomas Howell humbly complaining, showeth unto your worships, that at the last term of your worshipful court, administration on the estate of Hillary Whitehurst was committed to your petitioner, as also the guardianship of Mary E. Whitehurst, infant child and heir-at-law of said Hillary. Tour petitioner further shows to your worships, that the debts due from the estate of the said Hillary, greatly exceed the personal assets which have come, or by possibility can come, to his hands as administrator. Your petitioner further shows unto your worships that the said Hillary died seized and possessed of a tract of land lying in the county of Martin aforesaid, adjoining the lands of John Pliil-pot, Thomas Howell, and the heirs of Kenneth Hyman, which has descended to the said Mary E., one of the heirs-at-law of the said Hillary. Your petitioner further shows to your worships that, in as much as the lands which have descended, as aforesaid, must, in process of time, be sold for the settlement and payment of debts of the said Hillary, to satisfy judgments against said Mary E., as heir-at-law of said Hillary, and for cash, and as the interests of his ward will be advanced by a sale of such lands upon a credit of six months, your petitioner prays your worships that he be permitted to sell said lands upon a credit of six months, in conformity to the act of Assembly in such case made and provided ; and that your worships will make such other and further order in the premises as to your worships may seem right and fit, and to justice may appertain, and your petitioner, &c.”

At the same term, was entered on the record of the court this entry: “ Ordered by the court, that the prayer of the above petition be granted, and that, as the facts set forth in the petition are true, as appears by the oath of E. G-. Hammond, the guardian have leave to sell the lands mentioned and described in said petition.”

The following is'found also of record in the County Court: “In pursuance of an order of the Court of Pleas and quarter Sessions of Martin county, I have sold the lands of Hillary Whitehurst, upon a credit of six months, and Sarah Manning became the highest bidder at the price of $660, for which I have taken her note at six months, the credit upon which the land was sold. Williamston, April 12, 1S3T.”

The defendant, Mrs. Manning, produced also a deed from the commissioner Howell, for all the land described in the petition.

It was contended by the plaintiff’s counsel that this whole proceeding is void, and that no title passed to the purchaser, or that at any rate, only a moiety, to wit, the right of Bryan and wife.

It was insisted by the defendant that she had title to the whole, but that at any rate, she has title to a moiety — that of Bryan and wife, and that as they have been improperly inserted as lessors, and there is no separate count on the demise of John IT. Whitehurst, the plaintiff cannot recover all. The above facts are stated in a case agreed, and submitted for the judgment of the Court, who gave the same for the plaintiff, whereupon the defendant appealed.

Winston, jr., for the plaintiff.

Rodman, for the defendant.

PeaesoN, O. J.

The petition and other proceedings, under which the land was sold, are extremely meagre, but enough is set forth to support the sale according to the adjudications of this Court; Coffield v. McLean, 4 Jones’ Rep. 15; Spruill v. Davenport, 3 Jones’ Rep. 42; Pendleton v. Trueblood, ib. 96. The petition alleges the existence of debts of the ancestor for which the estate of the ward is liable, and describes the land with as much certainty as is done in Pendleton v. Trueblood, and the Court adjudges, upon the testimony of a competent witness, that the matters alleged in the petition are true, and orders a sale of the laud mentioned and described in the petition.

There is, however, a fatal objection to the plaintiff’s right to recover in the present action. The sale made by the commissioner, passed only the title of Mary E. Whitehurst. John H. Whitehurst, one of the heirs, was not a party to the proceeding. No application was made in his name or in his behalf, for an order to sell the land, so that his moiety of the land was not sold, and did not pass by the deed of the commissioner. Indeed, as the proceedings do not notice the existence of this heir, or purport to make any disposition in respect to his moiety, we had some difficulty as to how far the Court had power to order a sale, which would only pass the title of the other. We are satisfied, however, that the Court has the power, otherwise, the land of an infant heir cóuld not be sold where there is an adult co-heir. So, that although the exercise of the power in this case may have been ill-advised, and although the purchaser may have a right to complain, (for no doubt she thought she was buying the whole tract) still the sale is not void, because the Court had the power, and the fact that the purchaser did not get title to one moiety, is no reason why she should not be allowed to assert her title to the other.

We have, then this point: The declaration has bnt one count. That is on the demise of Bryan and wife, and John H. Whitehurst. One of the lessors, Bryan and wife, had no title; can the action be maintained ?

It is settled that it cannot. The title of the lessors must be truly stated in the declaration, and must be proved as alleged. A joint demise in the name of two, is not supported by proof of title in one, as to a moiety. Hoyle v. Stowe, 2 Dev. Rep. p. 320. The judgment must be reversed, and a venire de novo awarded.

Per CubiaM, Judgment reversed.