McNeill v. . McBryde

16 S.E. 841, 112 N.C. 408

• Court: Supreme Court of North Carolina
• Decided: February 5, 1893
• Status: Published

Opinion

Shepherd, C. J.:

The objection that the plaintiff Caroline McNeill cannot subject the land of the intestate until a judgment lias been obtained upon the guardian bond executed by him as surety would seem to be sustained by the case of Williams v. McNair, 98 N. C., 332. But as the amount of damages arising from a breach of the bond is alleged in the complaint and admitted by the demurrer, the present case does not come within the reason of that decision, and the point is therefore untenable.

The amount of damages, then, being admitted, the plain-itff can maintain the present proceeding in her own name, and the joinder of the State is a mere matter of surplusage and not a misjoinder of different causes of action. Being entitled to proceed against the land, she could do so by a proceeding in the nature of a creditor’s bill, and the objection upon this ground is also without merit.

We think, however, that the petition is deficient in that it does not comply with section 1437 of The Code, which requires that it shall set forth “the value of the personal estate and the application thereof.” It simply states that the personal estate ‘Us wholly insufficient to pay his (intestate’s) debts and the costs and charges of administration.” The purpose of the statute, in requiring the particulars therein mentioned to be stated in the petition, was to enable the Court to see whether a sale was necessary; but the present allegation wholly fails to give any such information. It is important that the requirements of the statute should be observed, and we must sustain the demurrer upon this ground. Shields v. McDowell, 82 N. C., 137. In other respects the rulings below are affirmed. The plaintiff may apply for leave to amend in the Superior Court.

The costs of this appeal will be equally divided. The Code §527. Modified.