East v. Smith

Court of Appeals of North Carolina

East v. Smith

182 S.E.2d 266, 11 N.C. App. 604, 1971 N.C. App. LEXIS 1597

CourtCourt of Appeals of North Carolina

DecidedJuly 14, 1971

DocketNo. 719SC419

StatusPublished

This text of 182 S.E.2d 266 (East v. Smith) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

East v. Smith, 182 S.E.2d 266, 11 N.C. App. 604, 1971 N.C. App. LEXIS 1597 (N.C. Ct. App. 1971).

Pincite

Opinion

MALLARD, Chief Judge.

On 8 June 1971 petitioner filed a motion to dismiss the-appeal of movants on the grounds that “this appeal was apparently taken and perfected purely for the purpose of delay.” This motion is denied.

Movants contend, among other things, that the judgment ordering the sale should be vacated for fatal defects appearing on the face of the record. When the cause was heard by Judge Hall, jury had been waived and answer had been filed by movants Fannie Smith Kingsberry, Aaron Jacob Smith and Jeannette Smith Turner, together with other alleged tenants in common. John F. Matthews was their attorney. The other movants had not filed answer. After the sale but before confirmation, all movants, represented by John F. Matthews, filed a motion asking that the sale be not confirmed; and thereafter, but before confirmation of the sale, they moved to vacate the order of Judge Hall.

This began as an action by the petitioner under the provisions of G.S. 28-81 for the sale of his intestate’s undivided [610]*610interest in the real estate described for the purpose of paying the debts of the estate. G.S. 28-81 provides in part:

“When it is alleged and shown that the real property of the decedent consists in whole or in part of an undivided interest in real property, and that sale of such undivided interest is necessary to make sufficient assets to pay debts, including the charges of administration, the personal representative of the decedent may, at the time of applying by petition to sell the real property to make assets, apply by petition for partition of the lands in which the decedent held an undivided interest. Such petition for partition may be joined as a part of the petition to sell the real property, and, when the personal representative petitions for the sale of such undivided interest to make assets, he is a proper party petitioner to the same effect as if he were a joint tenant or tenant in common.” (Emphasis added.)

While there was a finding in the order signed by Judge Hall that the debts of the estate of Mana Agusta Perry amounted to $748.80 and that Mana Agusta Perry died owning a 24/1152 undivided interest in the 168-acre tract of land, there is no finding by the judge that the personal estate of Mana Agusta Perry was insufficient to pay all of her debts or that a sale of such undivided interest was necessary to make sufficient assets to pay her debts, including the charges of administration, as required by G.S. 28-81. In the case of Poindexter v. Bank, 247 N.C. 606, 101 S.E. 2d 682 (1958), it is said:

“Moreover, the essential fact to be found to enable an administrator to maintain a proceeding to sell land to make assets, G.S. 28-81, et seq., is the insufficiency of personal property to pay the debts of the decedent. Therefore there must be definite statements in the petition as to the amount of debts outstanding against the estate, and as to the personal estate, and the application therefore, to enable the court to see that there is such insufficiency of personal property. And the respondents, heirs at law, who are required to be made parties to the proceeding, have the right to plead any defense against a debt for which sale of the lands are to be made.” (Emphasis added.)

In the case at bar the petitioner alleged that -there were debts of the estate and that there was no personal property [611]*611owned by the estate; however, both of these allegations were denied by the answering movants. The issues were thus raised, but the court did not find the essential fact of insufficiency of personal property to pay the debts of the decedent. Absent such a finding, the order of sale for partition was improvidently entered. The motion to vacate the judgment entered 24 September 1969 by Judge Hall should have been allowed.

In view of the foregoing, we do not discuss movants’ other assignments of error. The order of Judge Hall dated 24 September 1969 and all subsequent orders entered pursuant thereto are vacated, and this cause is remanded to the Superior Court of Franklin County for further proceedings as provided by law.

Remanded.

Judges Campbell and Hedrick concur.

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MALLARD, Chief Judge.

On 8 June 1971 petitioner filed a motion to dismiss the-appeal of movants on the grounds that “this appeal was apparently taken and perfected purely for the purpose of delay.” This motion is denied.

Movants contend, among other things, that the judgment ordering the sale should be vacated for fatal defects appearing on the face of the record. When the cause was heard by Judge Hall, jury had been waived and answer had been filed by movants Fannie Smith Kingsberry, Aaron Jacob Smith and Jeannette Smith Turner, together with other alleged tenants in common. John F. Matthews was their attorney. The other movants had not filed answer. After the sale but before confirmation, all movants, represented by John F. Matthews, filed a motion asking that the sale be not confirmed; and thereafter, but before confirmation of the sale, they moved to vacate the order of Judge Hall.

This began as an action by the petitioner under the provisions of G.S. 28-81 for the sale of his intestate’s undivided [610]*610interest in the real estate described for the purpose of paying the debts of the estate. G.S. 28-81 provides in part:

“When it is alleged and shown that the real property of the decedent consists in whole or in part of an undivided interest in real property, and that sale of such undivided interest is necessary to make sufficient assets to pay debts, including the charges of administration, the personal representative of the decedent may, at the time of applying by petition to sell the real property to make assets, apply by petition for partition of the lands in which the decedent held an undivided interest. Such petition for partition may be joined as a part of the petition to sell the real property, and, when the personal representative petitions for the sale of such undivided interest to make assets, he is a proper party petitioner to the same effect as if he were a joint tenant or tenant in common.” (Emphasis added.)

While there was a finding in the order signed by Judge Hall that the debts of the estate of Mana Agusta Perry amounted to $748.80 and that Mana Agusta Perry died owning a 24/1152 undivided interest in the 168-acre tract of land, there is no finding by the judge that the personal estate of Mana Agusta Perry was insufficient to pay all of her debts or that a sale of such undivided interest was necessary to make sufficient assets to pay her debts, including the charges of administration, as required by G.S. 28-81. In the case of Poindexter v. Bank, 247 N.C. 606, 101 S.E. 2d 682 (1958), it is said:

“Moreover, the essential fact to be found to enable an administrator to maintain a proceeding to sell land to make assets, G.S. 28-81, et seq., is the insufficiency of personal property to pay the debts of the decedent. Therefore there must be definite statements in the petition as to the amount of debts outstanding against the estate, and as to the personal estate, and the application therefore, to enable the court to see that there is such insufficiency of personal property. And the respondents, heirs at law, who are required to be made parties to the proceeding, have the right to plead any defense against a debt for which sale of the lands are to be made.” (Emphasis added.)

In the case at bar the petitioner alleged that -there were debts of the estate and that there was no personal property [611]*611owned by the estate; however, both of these allegations were denied by the answering movants. The issues were thus raised, but the court did not find the essential fact of insufficiency of personal property to pay the debts of the decedent. Absent such a finding, the order of sale for partition was improvidently entered. The motion to vacate the judgment entered 24 September 1969 by Judge Hall should have been allowed.

In view of the foregoing, we do not discuss movants’ other assignments of error. The order of Judge Hall dated 24 September 1969 and all subsequent orders entered pursuant thereto are vacated, and this cause is remanded to the Superior Court of Franklin County for further proceedings as provided by law.

Remanded.

Judges Campbell and Hedrick concur.

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Bluebook (online)

182 S.E.2d 266, 11 N.C. App. 604, 1971 N.C. App. LEXIS 1597, Counsel Stack Legal Research, https://law.counselstack.com/opinion/east-v-smith-ncctapp-1971.

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