Opinion · Supreme Court of North Carolina
Thompson v. . Cox
53 N.C. 311
- Type
- Opinion
- Court
- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1860-12-05
- Topic
- general
Pearson, C. J. The statute ch. 46, sec. 47, Rev. Code requires that “the heirs and devisees or other persons interested in said estate,” shall be made parties to the petition of an executor or administrator to sell real estate. We think it obvious that the words “ or other persons interested in said estate,” were intended to embrace the assignees of an heir or devisee, that is, their heirs or devisees or'persons taking by purchase or alienation within two years after the qualification of an executor or letters of administration granted; which conveyances are made void against creditors or executors and administrators by sec. 61, and do not embrace the creditors of a deceased debtor; for : 1.
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THOMPSONv. COX,53 N.C. 311(1860)
WILLIAM THOMPSON ET AL. v. WILLIAM T. COX ET AL.
Supreme Court of North Carolina
(December Term, 1860.)
2. Nor is the fund raised by such sale under the control and direction of the court making the order of sale.
3. After passing the order for the confirmation of a sale, made by virtue of the statute, Rev. Code, ch. 46, sec. 45, etc., the jurisdiction of the court is at an end, and a petition to open the biddings under such sale will not be sustained.
4. The county courts have no jurisdiction, by bill, at the suit of creditors, to convert a purchaser of land into a trustee, on the allegation of fraud and collusion.
5. The powers of a court of limited jurisdiction cannot be enlarged by implication.
6. One who is not a party to a bill in equity cannot appeal on petition to rehear or file a bill for a review.
The petition sets forth that the petitioners are creditors of the defendants' intestate, Micajah Cox; that he was indebted to them largely beyond the value of his personal estate; that the sale made by the defendant William T. Cox under the order obtained for that purpose was made by collusion with his brother, to other defendant, Nathan, at much less than its real value; that sufficient notice was not given of the day of sale, and very few persons attended, and no one bid except the said Nathan, and that two tracks of land, worth at least $10,000, were bid off by him, Nathan, at $2,500, and that there was an understanding between the brother that the administrator was to have one of them at the price at which it was bid off; that it was falsely represented by the said administrator to the county court of Johnston that the said land had been sold for its full value and he had by such false assurance induced the said court to confirm the sale; that if the said sale shall stand, the plaintiffs will lose most if not all their debts, as it is understood that most if not all the means of the said estate, including the amount received on the sale complained of, are exhausted. The petition concludes as follows:
"Your petitioners, therefore, pray, for the reasons above stated, and others which they will present at the hearing of this petition, that the order confirming the said sale may be set aside and resale directed, with full and fair opportunity given to the creditors and sureties of thePage 239said intestate to attend such sale and make the said lands bring a fair and reasonable price. To this end they pray that a copy of this petition to rehear and set aside the said order or decree may be served on the defendants, and that your petitioners may have such other and further relief as their case requires," etc.
The defendants answered the petition, and both parties took testimony, but as the consideration of the case in this Court is confined entirely to the merits set forth in the petition, the matters therein disclosed are deemed immaterial. The county courtpro formadismissed the petition, and the plaintiffs appealed. The Superior Court also (313) ordered petition to be dismissed, and the plaintiffs appealed to this Court.
1. They are represented by the executor or administrator who made the application for the license to sell the real estate for their benefits, and the only adversary interest is that of the heir or devisee, or their assignees.
2. The creditors may not be known or their debts ascertained.
3. Creditors have no direct interest in the estate, and can only reach it by charging the executor or administrator with the proceeds of the sale as assets.
There is no express provision in the statute requiring the sale made by an executor or administrator to be reported to the court and be confirmed. It may be that section 49, which omits the word "license" and substitutes that of "decree," and requires "that the title shall be made to the purchaser by such person, and at such time as the court shall prescribe," furnishes sufficient ground for the interference that the sale ought to be reported to and confirmed by the court; yet, in the absence of some express provision, we are not at liberty to carry the construction further, and infer that the fund, in respect to its collection and (314)Page 240mode of application, is to be under the control and direction of the court; for by section 51 it is provided, "the proceeds of the sale shall be assets in the hands of the executor or administrator for payment of debts, etc., and applied as though the same were the proceeds of personal estate." It follows that after granting a license or decree of sale, and the order confirming the sale, and to make title to the purchaser is passed, the court has nothing more to do in the matter, and its jurisdiction is at an end.
Having arrived at these conclusions in regard to the construction of the statute, the application to the case under consideration shows that the proceeding cannot be sustained.
Viewed in the light of a petition to open the biddings, there are two fatal objections. No responsible specific offer is made in respect to the amount, and no assurance given that the price will be increased. After the term at which a sale is confirmed, a court of equity in the case of a decree of sale or for partition of an infant's land and the like, where the fund, in respect to its collection, distribution, and application, is still under its control, will not open the biddings;Ashbee v. Cowell,45 N.C. 158;a fortiorithe court cannot do so in a case where, after passing the order of confirmation, etc., its jurisdiction is at an end.
Viewed in the light of a petition to rehear, it cannot be entertained, because the petitioners were not and ought not to have been parties to the original proceeding. One who is not a party cannot appeal, or petition to rehear, or file a bill of review. This is settled, according to the practice of the courts, and no precedent to the contrary can be found.
Viewed in the light of a bill in equity to convert the purchaser into a trustee, on the allegation of a fraudulent collusion between him and the administrator to suppress competition — buy the land at a sacrifice and divide the spoils, and on the footing of fraud, to hold them liable for the actual value of the land, instead of the price at which it was sold, the proceeding cannot be entertained; because the county (315) court, in which it originated, had no such equity jurisdiction. It has general original jurisdiction in cause of a civil nature at the common law; its equity jurisdiction is limited, and depends on specific statutory provisions (Leary v. Fletcher,23 N.C. 257),e. g., "petitions for filial portions, legacies, and distributive shares, matters relating to orphans, idiots, and lunatics, and the management of their estates." Revised Code, chap. 31, sec. 5.
Whether by force of section 53 of the statute under consideration, which subjects to sale, on the application of an executor or administrator, "all rights and interests in land which may be devised or would descend to the heirs, and all such other interests in real estate as would be liable in a court of equity, to be applied in discharge of debts," has thePage 241effect of giving jurisdiction to the county court in such cases, is a question not now presented; but it is certain that these matters are peculiarly fit to be dealt with by a court of full equity powers, and the interests of all parties will be best protected by having the rights declared by a decree in a court of equity before the land is exposed to sale. This section, however, has no application to the case before us; the powers of a court of limited jurisdiction cannot be enlarged by implications.
PER CURIAM. Affirmed.Cited: Evans v. Singletary,63 N.C. 206;Lovinier v. Pierce,70 N.C. 171;Peterson v. Vann,83 N.C. 120;Bevers v. Park,88 N.C. 459;Dickens v. Long,109 N.C. 171;Austin v. Austin,132 N.C. 266.
NOTE. — Since the last term, HON. M. E. MANLY, who had received the appointment of judge of the Supreme Court from the Governor,adinterim, to the Superior Court bench, by the Governor, were permanently elected to that office by the Legislature.
HON. GEORGE HOWARD, JR., and HON. R. S. FRENCH, who had been appointedad interimto the Superior Court bench, by the Governor, were permanently elected to that office by the Legislature.Page 242
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