Quick v. Federal Land Bank , 208 N.C. 562 ( 1935 )

ClarksoN, J.

This cause was before this Court on the petition of The Eederal Land Bank of Columbia to remove same to the District Court of the United States for the Middle District of North Carolina. The court below refused the petition, and the judgment, on appeal, was affirmed by this Court. Ex parte Quick, 206 N. C., 627.

N. C. Code, 1931 (Miehie), sec. 2180, is as follows: “On application of the guardian by petition, verified upon oath, to the Superior Court, showing that the interest of the ward would be materially promoted by the sale or mortgage of any part of his estate, real or personal, the proceeding shall be conducted as in other cases of special proceeding; and the truth of the matter alleged in the petition being ascertained by satisfactory proof, a decree may thereupon be made that a sale or mortgage be had by such person, in such way and on such terms as may be most advantageous to the interest of the ward; but no sale or mortgage shall be made until approved by the judge of the court, nor shall the same be valid, nor any conveyance of the title made, unless confirmed and directed by the judge, and the proceeds of the sale or mortgage shall be exclusively applied and secured to such purposes and on sucb trusts as the judge shall specify. The guardian may not mortgage the property of bis ward for a term of years in excess of the term fixed by the court in its discretion. The word ‘mortgage,’ whenever used herein, shall be construed to include deeds in trust.” Ipock v. Bank, 206 N. C., 791, 95 A. L. R., 836.

We have examined with care the petition of Mrs. Ella Yeoman Quick, guardian of the infant petitioners, to place a lien on the land in controversy of the infants, which they held in remainder, to the extent of $5,000. Also the judgment of the clerk and confirmation of the presiding judge. It is loosely and inartificially drawn. The statute should be strictly complied with.

In Moore v. Gidney, 75 N. C., 34 (39), Bynum, J., who in speaking of the statutory requirements for a valid judgment against an infant, says: “So careful is the law to guard the rights of infants, and to protect them against hasty, irregular, and indiscreet judicial action. Infants are in many cases the wards of the courts, and these forms enacted as safeguards thrown around the helpless, who, often the victims of the crafty, are enforced as being mandatory and not directory only. Those who venture to act in defiance of them, must take the risk of their action being declared void or set aside.” In re Reynolds, 206 N. C., 276.

In The Federal Land Bank of Columbia’s response to the petition of the petitioners is the following: “That said mortgage was duly executed by the said Ella Yeoman Quick, guardian, on 9 January, 1920, and was duly recorded in Book 22, at p. 62, of the records in the office of the register of deeds for Hoke County; and that since said date, for a long period of time, the payments due under said note secured by said mortgage deed have been met.”

This action was brought on 12 December, 1933, nearly 14 years after the transaction was consummated. Of course, the petitioners were under age, and this petition was filed after they became of age. We think the petition inferentially alleges this, and the contentions by the Federal Land Bank of Columbia to the contrary untenable. There is a presumption that the record speaks the truth and the statute complied with, if not too glaring to the contrary. With this presumption in favor of the Federal Land Bank of Columbia, we hold that the deed of trust as to $3,000.00 is valid. As to $2,000.00 we cannot so hold. The record is that the Federal Land Bank of Columbia had notice that $2,000.00 of the $5,000.00 loan did not show “that the interest of the ward would be materially promoted by the sale or mortgage of any part of his estate.” Section 2180, supra. The record clearly shows by the “Exhibit A” set forth in the Federal Land Bank of Columbia’s response, that $2,000.00 of the $5,000'.00 was “for live stock necessary in the proper and reasonable operation of the same,” on. the farms in which, the petitioners had a remainder. The other $3,000.00 was — $2,000.00 “to provide buildings to be erected on the mortgaged land,” and $1,000.00 “to provide for the improvement of the mortgaged land, improvements to be such as defined by the Federal Farm Loan Board.”

It is clear as the noonday sun that the wards who had a remainder in the land, their interest would not “be materially promoted” by $2,000.00 - — being used to purchase live stock to operate the farm. The $2,000.00, included in the $5,000.00 loan, was as to the infants null and void.

For the reasons given, the judgment is

Modified and affirmed.