Overton v. Cranford, 52 N.C. 415, 7 Jones 415 (1860)

June 1860 · Supreme Court of North Carolina

52 N.C. 415, 7 Jones 415

Doe on the demise of EZEKIEL OVERTON v. ALISON G. CRANFORD.

The purchaser of a tract of land under an order of a court of competent jurisdiction for a sale for the payment of debts, on the petition of the administrator, who was also the sheriff -serving the notices on the heirs-at-law; (such purchaser not being a party to the proceedings,) was Held not to be affected by such irregularity, nor by the fact that the petition .was not. sworn to.

This was an action of ejectment, tried before Shepherd, J>, at the Special Term, June, 1859, of Montgomery Superior Court.

There was a verdict for the defendant, and the following are the exceptions taken to the ruling of his Honor in the progress of the trial.

The plaintiff offered, as part of his \itle, a deed for the land in dispute, from one A. H. Saunders, who had been appointed by the County Court a commissioner to sell certain lands belonging, to the heirs-at-law of one Burgess Goings. Saunders was the administrator of Goings, and filed a petition in 1849, to make the real estate assets for the payment of debts. He was also sheriff of the county, and, as such, served the notices issuing in the cause, upon the lieirs-at-law, who were made parties defendant, and the returns were made in his own name, as sheriff. The Court held that this service by the plaintiff in the cause, ivas void, and could not support the deed from Saunders, offered by the plaintiff. Eor this, the plaintiff’s counsel excepted.

There was no affidavit to the petition as required by the statute. The Court held the order of sale to be void on that account. For this, the plaintiff’s counsel excepted. The plaintiff then offered a deed from the widow of Goings for a tract of land, allotted to her as dower, and it became a question whether the locus in quo was within the boundaries of the said deed upon which, questions as to the principles of law regulating boundaries arose, and were decided against the plaintiff, and exceptions taken, but as this Court did not proceed to their consideration, it is not deemed necessary to state them.

Appeal by the plaintiff.

Blackmer and J. H. Bryan, for the plaintiff.

Fowls, for the defendant.

Manly, J.

The case states the plaintiff attempted to show-title through Burgess Goings, by proceedings on the part of' his administrator, A. II. Sannders, to make the real estate assets. It seems there was a petition, and copies with notices served upon the heirs by A. II. Saunders, who- was, at the-time, sheriff, and a decree for a sale, appointing Sannders commissioner to sell. Two irregularities are noted in the proceeding, and for these, It was objected1 in the Court below, that the sale, under the proceedings was void. The Court sustained these objections, and this evidence of tille was excluded. How far, or in what respect, this ruling affected the-controversy, (that is-the boundary between the parties,) we are not enabled to see, but suppose from its insertion, it had a material bearing. In this ruling, we think there-is error:

Neither of the parties to this controversy was a party to> the petition for the sale, or in any way interested in it, and we are of opinion a mere stranger cannot go- behind the decree of sale-and take advantage of the irregularities noted, to-defeat the rights of the purchaser. The order, which is the commissioner’s warrant for selling, being- regular on its face, and issuing from a court of competent jurisdiction, the purchaser ought to be protected, otherwise, all' confidence injudicial sales will be lost, and the free and perfect competition for property on such occasions, essential to the rights of all parties,- entirely subverted.

It may ¡De remarked with regard to the first of the defects mentioned in the case, that neither as administrator in preferring the petition, nor as sheriff in serving the notices, does Saunders act proprio jure, hut in both, he is the minister of' the law. There is not, therefore, in his conduct, strictly speaking, the inconsistency of acting as ministerial officer in his own cause. It is an irregularity which the Court might have corrected, upon exception, pending the proceedings, but it cannot be enquired into collaterally. And, with respect to the objection that no affidavit of the- facts of the petition was--, made, it would have been* corrected.! upon the motion of any-party in the cause, while it was pending, but the- decree of" sale cannot now be annulled therefor, upon the motion:of a* stranger.

The-object of calling;in the parties in interest, is to guard'! the Court from acting against law to the inj ury of any one, and' every thing of form, as well as substance, is supposed to be-done, or waived, until the contrary be established, by'proper proceedingá, instituted for the- purpose. These-principles seem to be fully settled in the case of a constable’s levy on land returned to Court. A sale made- in pursuance of an order from the Court, in such a case, cannot be impeached collaterally, although it did not appear from the constable’s return, there were no goods and chattels, and' although nomotice was giveu to the owner ; Doe on dem. of Jones v. Austin, 10 Ire. Rep. 20.

The able Judge, who tried the case -below, had; as we suppose, the case of doe on the demise of Leary v. Fletcher, 1 Ire. Rep. 259, in his mind ; where it is decided that an order made for the sale of an orphan’s land by the County Court on the motion of the guardian,, was void for certain irregularities in the proceedings. The cases may be- distinguished. In Doe v. Fletcher, the decree, or order of sale, which constituted the sheriff’s warrant, was contrary to the requirements- of the law in this: no particular property was specified, but the sheriff required to sell so much as- might be sufficient,, whereas, the law requires the court to designate. The- order upon its face, was outside of the court’s power, and was consequently void. Not so in the case-now before us.

We have not thought proper-to discuss-the point of evidence, raised on the question of boundary, as it becomes unnecessary to do so-from the view taken of the other points, and because, upon a second trial, it may possibly be eliminated altogether from the case by the introduction of the title excluded upon the former trial. In excluding this title, derived from the administrator’s sale, there was error, and for this, there must be a venire de novo.

Per Curiam,

Judgment reversed.