Avery v. . Guy

The court below rendered the following judgment: "This cause coming on for hearing and being heard before his Honor, and it appearing to the court upon the admitted facts that the plaintiffs are barred and estopped from further asserting their claim in this cause, it is, therefore, considered, ordered and adjudged that the plaintiffs be and they are hereby nonsuited in this cause." Plaintiff, Carrie Avery, guardian, excepted to the judgment as signed, assigned error and appealed to the Supreme Court. C. S., 74, in part, is as follows: "When the personal estate of a decedent is insufficient to pay all his debts, including the charges of administration, the executor, administrator or collector may, at any time after the grant of letters, apply to the Superior Court of the county where the land or some part thereof is situated, by petition, to sell the real property for the payment of the debts of such decedent," etc.

Upon the death of a person owing debts the land descends to the heirs at law subject to the payment of the same, after exhausting the personal property. The heirs of the deceased are necessary parties to the proceeding. C. S., 80.

It was contended by plaintiff, Carrie Avery, guardian of the heirs at law of W. W. Avery, that defendants violated their timber contract with W. W. Avery. That defendants cut certain timber after W. W. Avery's death which was not included in the contract. The defendants set up an award under a consent order made 21 June, 1930, in the present cause. Ira Vance, Sam G. Smith and Vance Palmer being appointed to investigate and make an award, which was done.

The defendants contend that "settlement of this cause of action on the basis of $4.00 per M. feet, stumpage, for the amount of timber estimated and reported as aforesaid, which said offer these defendants accepted, and paid the said Vance accordingly, and took a release from him duly executed and for full value and before the filing of the complaint herein, which said release these defendants now plead in bar of the plaintiffs' action and right of recovery herein."

The release set up, is as follows:

"Whereas, the above entitled action was instituted in the Superior Court of Avery County for the purpose of collecting the balance due by E. C. Guy and Company to W. W. Avery estate on account of timber cut from the lands of the said W. W. Avery estate, under a contract or deed made before the death of the said W. W. Avery, some of said timber having been cut beyond the boundaries of said deed by mistake; and,

Whereas, by consent of the parties to said action, an estimate was made of the timber so cut beyond said boundaries, said estimate having been made by Sam Smith, Ira Vance and Vance Palmer, to be 50,000 feet; and,

Whereas, the said 50,000 feet so cut by mistake, added to the amount cut from the boundaries of said deed, makes a total of 388,963 feet at $4.00, making $1,555.85, on which has been paid $1,208.50, leaving a balance of $347.35. Which said amount is this day paid to Ira Vance. administrator of the estate of W. W. Avery, deceased, in full satisfaction and settlement of said matter, receipt of which, by the said Ira Vance, administrator, is hereby acknowledged. This 16 July, 1930. Ira Vance, administrator of the estate of W. W. Avery, deceased. Witness: Eugene Eller."

The plaintiff in reply says: "That Ira Vance, acting in the capacity of administrator, has settled all of the debts of the late W. W. Avery, and the estate except his commission and expenses and about $75.00 of debts incurred in the administration thereof. That the balance of any funds collected in this cause belongs to the wards of Carrie Avery, guardian. That she was not consulted in said attempted settlement; that she did not know such attempted settlements were contemplated, and that such attempted conditional transactions between the plaintiff, Ira Vance, and the defendant, E. C. Guy, does not constitute a bar to the prosecution of this action, as the plaintiff, Carrie Avery, is advised and believes."

If the defendants cut any timber under the contract made with W. W. Avery before his death, and had not accounted for it, then the action must be brought by the administrator of the estate, Ira Vance, and not by plaintiff Carrie Avery, guardian.

The administrator of the estate of W. W. Avery, Ira Vance, is a party plaintiff. It appears that there is a small amount of debts of the estate of W. W. Avery unpaid. The recovery in the action, if there are debts, would go to Ira Vance, administrator, to pay the debts of W. W. Avery, and any balance to Carrie Avery, guardian. As all the heirs at law of W. W. Avery, through their guardian, are parties plaintiff, and were when the settlement was made, we see no good reason to disturb the judgment of the court below. It appears in the record that those appointed in the action to estimate the timber "having been appointed by the court by the agreement ofcounsel in this action." We do not think that the principle of law as set forth in Garland v. Improvement Co., 184 N.C. at p. 556, case cited by plaintiff guardian, applicable.

Conceding, but not deciding, that there was error in the judgment of the court below, yet on the entire record there is not such prejudicial or reversible error for which the judgment should be set aside.

In Booth v. Hairston, 193 N.C. at p. 281, speaking to the subject, is the following: "Our system of appeals is founded on public policy and appellate courts will not encourage litigation by granting a new trial which could not benefit the litigant and the result changed upon a new trial, and the nongranting was not prejudicial to his rights. Bateman v.Lumber Co., 154 N.C. p. 253; Rierson v. Iron Co., 184 N.C. p. 363;Davis v. Storage Co., 186 N.C. 676. ``They will only interfere therefore, where there is a prospect of ultimate benefit.' Cauble v. Express C., 182 Co., 182 N.C. p. 451." The judgment of the court below is

Affirmed.