Williams v. Williams, 94 N.C. 732 (1886)

Feb. 1886 · Supreme Court of North Carolina

94 N.C. 732

O. G. WILLIAMS et als. JNO. WILLIAMS et als.

Infants — Guardian ad litem — Possession.

, 1. Where the record showed that a guardian ad litem, was appointed in 1866, but no answer was filed lor the infants, and no effort made to assert their rights, but the infants delayed action until the youngest of them was 24 years old ; It was held, that the cause would not be opened to allow them to assert their rights, when it had proceeded to an end, and all that was necessary was a final decree.

2- Where the plaintiff was in possession, and a suit for partition was progressing, and certain infant defendants, for a number of years after reaching majority, raised no objection to the possession, and made no defence to the proceeding; It was held, that they would not be allowed to come in when nothing was wanting but a final decree, and open the case so as to set up' defences attacking the plaintiff’s right of.possession.

Motion heard in a cause jiending in the Supreme Court, at February Term, 1886.

The facts appear in the opinion.

Mr. D. M. Furehes for the plaintiffs.

Messrs. Theo. F. Davidson and John Devereux, Jr., for the defendants.

Siiith, C. J.

This suit was begun in the former Court of Equity of Iredell county, and the original bill was filed at Spring Term, 1886. At the last Term, in pursuance of an order previously made for partition, the land was divided, and report made by the commissioners, allotting to the tenants their shares in severalty. To the confirmation of the report, several of the defendants unite in filing objections, in support of which they allege that they were infants, without guardian, at the institution of the suit, and during its progress have had no one to defend their'interests, which are not identical with the other contesting defendants, and which will be sacrificed by a decree of confirmation., They therefore ask that the matter be re-opened, and the further progress of the cause arrested, to enable them to assert their rights in the premises.

It appears from an inspection of the bill, that it prayed for the appointment of a guardian ád litem to the infant defendants.

The cause was docketed, and at Fall Term, 1866, an entry appears, shown to be in the handwriting of the clerk and master then acting and since deceased, in these words, “In this case, upon motion, the clerk and master was appointed guardian, pendente lite for the minor defendants.”

It does not appear that any effort was made on their behalf, to set up the claim now asserted by them. The affidavits offered in resistance to the motion, prove that the oldest of those then under age, is now about thirty-six years of age, and the youngest about twenty-four, the ages of the others being intermediate .between them.

There is also evidence furnished, tending to show that the intestate father, under whom they claim, knew of the possession and claim of Theophelus Williams, under a deed from J. W. Williams, made to him in 1854, and the occupation of the land for several years, and the intestate was heard to say, that he got a certain gray horse from the defendant J. W. Williams for the land, or in the way of it.

We shall not repeat all the testimony offered in the affidavits to sustain the claim of right from long possession and general family acquiescence in it, and refer to what has been extracted, only to say, that the acquiescence of the present complaining parties, for the series of years since they attained their full ages, the youngest for three years, in which no resistance was offered to the prosecution of the proceeding, when we must infer it was known to them, would render it inequitable for them now to intervene and disturb what has been done, for any of the reasons suggested. If the guardian ad litem did not assert any claim for the infants, or even put in an answer, we must suppose it was because he thought they had none, for we cannot assume that he was wholly heedless of the trust imposed. The application must be denied, and there being no other exception, the report must be confirmed. A decree may be drawn accordingly.

Report confirmed.