Overton v. . Cranford

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 title, 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 heirs 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 was void, and could not support the deed from Saunders offered by the plaintiff. For 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 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 plaintiff. The case states the plaintiff attempted to show title through Burgess Goings, by proceedings on the part of his administrator, A. H. Saunders, to make the real estate assets. It seems there was a petition, and copies with notices served upon the heirs by A. H. Saunders, who was at the time sheriff, and a decree for a sale, appointing Saunders commissioner to sell. Two irregularities are noted in the proceeding, and for these it was objected in the court below that the sale under the proceedings was void. The court sustained these objections, and this evidence of title 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 in judicial 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 be 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, but 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 inquired into collaterally. And with respect to the objection that (417) 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 injury of any one, and everything of form, as well as substance, is supposed to be done, or waived, until the contrary be established by proper proceedings 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 no notice was given to the owner. Jones v. Austin, 32 N.C. 20.

The able judge who tried the case below had, as we suppose, Leary v.Fletcher, 23 N.C. 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 Leary 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 (418) excluding this title, derived from the administrator's sale, there was error, and for this there must be a

PER CURIAM. Venire de novo.