Motyka v. Nappier , 6 N.C. App. 544 ( 1969 )

PARKER, J.

The allegations of the complaint as they relate to defendants Kirk, except where quoted, may be summarized as follows:

(a) That defendant Nappier was the duly qualified and acting executor of the Will of Ralph Allen, deceased.

(b) That the Will of Ralph Allen directed the executor to sell all of the property of the estate, including real estate.

(e)That at the time of his death Ralph Allen owned a tract of land in Wake County containing about 218 acres.

(d) That on 21 March 1966 defendant Nappier as executor, in consideration of the sum of $100.00, privately executed to defendant Clarence M. Kirk an option to purchase the 218 acre tract in Wake County for the purchase price of $31,000.00.

(e) That at the time of granting the option defendant Nappier advised defendant Clarence M. Kirk of the objections of the plaintiffs to the sale of said property.

(f) That on 23 March 1966 plaintiffs advised defendant Kirk by mail “that said sale was not to the best interest of the beneficiaries, that they objected to the sale of the property described in the above mentioned option and that they would resist said sale and take necessary legal action to avoid said sale.”

(g) That on 28 March 1966 defendant Nappier as executor, executed and delivered to defendant Kirk a deed reciting consideration of $31,100.00 conveying the said 218 acre tract.

(h) That at the time of the conveyance defendant Kirk “had written notice that the infant beneficiaries objected to said sale.”

(i) That defendants Kirk, on 28 March 1966, executed a deed •of trust conveying said 218 acre tract to secure their note in the sum of $31,000.00 to defendant Production Credit Association.

(j) “That at the time of the granting of the option for the sale of said land, at all times subsequent thereto and at the present time the fair market value of said land was, has been and is reasonably at least $50,000.00.” •

(lc) “That the price of $31,000.00 received at said sale for said property is grossly inadequate, the fair market value thereof being at least $50,000.00.”

(1) “That the granting of an option for the sale and the sale of said lands by said executor to Clarence M. Kirk was contrary to law and equity for the reason that the price at which said land was sold was grossly inadequate, which was known or should have been known to said Executor and to Clarence M. Kirk, and said sale was consummated at a time and in a manner and under circumstances where said Executor and Clarence M. Kirk were fully advised that, the minor beneficiaries, plaintiffs herein, objected to said sale, all to the great damage of these minor plaintiffs, beneficiaries under the' will of Ralph Allen, deceased.”

The sole question presented by this appeal is whether plaintiffs have stated a cause of action against defendants, Clarence M. Kirk and wife, Imogene S. Kirk, for rescission and cancellation of the deed executed by defendant executor J. H. Nappier. We are of the opinion that the facts alleged in the complaint are not sufficient to constitute a cause of action against the defendants Kirk. The only allegations material to defendants Kirk are that they knew that the plaintiffs had objected to the sale and had demanded notice and an opportunity to be heard before any action to sell was taken; and that the price of $31,000.00 was grossly inadequate.

Even though defendants Kirk were aware at the time the option to purchase the property was executed that plaintiffs had objected generally to the sale and had demanded notice and an opportunity to be heard before any action to sell was taken, these facts would not be sufficient grounds to declare the sale of the property to defendant Clarence M. Kirk null and void and to set aside the deed conveying title to him. The executor had the express power and duty to sell the property and therefore plaintiffs could not impose a legal obligation upon him to hear their objections.

The defendant Kirk purchased the land from the executor who-had been directed by the Will to sell all of the property of the estate, including the real estate. Since the executor had express power and duty to sell and there are no allegations of fraud or collusion on the part of defendants Kirk, or that defendants Kirk had knowledge of any bad faith or fraud on the part of the executor, the complaint fails to allege a cause of action against defendants Kirk to have the deed set aside. 33 C.J.S., Executors and Administrators, § 293, p. 1323. See Felton v. Felton, 213 N.C. 194, 195 S.E. 533; Sprinkle v. Hutchinson, 66 N.C. 450; Polk v. Robinson, 42 N.C. 235; Gray v. Armistead, 41 N.C. 74.

Also, the allegation that the $31,000.00 paid for the property was inadequate will not provide facts sufficient to overcome the demurrer. Mere inadequacy of price standing alone and absent any element of fraud on the part of the purchaser, is not a sufficient ground for setting aside a sale by an executor unless the inadequacy is so gross as in itself to indicate fraud, or an abuse of the power conferred. 33 C.J.S., Executors and Administrators, § 294, p. 1325. Such was not the case here. It is noteworthy that plaintiffs voiced no objection to the sale on the ground of inadequacy of price until after the sale was consummated, even though they were aware of the terms of the option.

The judgment sustaining the demurrer of defendants Kirk is

Affirmed.

Mallaed, C.J., and Britt, J., concur.