Peterson v. . Vann

83 N.C. 118

• Court: Supreme Court of North Carolina
• Decided: June 5, 1880
• Status: Published

Opinion

Dillard, J.,.

after stating the case. Upon this appeal, the error assigned is the affirmance by the superior court of the refusal of the probate court on the facts above recited to set aside the decree of sale, order of confirmation and for title in the county court at February and May terms, 1868.

The late court of pleas and quarter sessions, by the act of 1846, (Rev. Code, ch. 46, § 44,) was clothed with a jurisdiction to order the sale of land of deceased debtors for payment of their debts on the petition of their personal representatives, to be exercised in the mode and to the extent limited in the statute conferring the jurisdiction. It was a quasi equitable jurisdiction, created for a special purpose and with enumerated powers, and hence the courts settled it, that upon a decree of sale, confirmation thereof and an order to collect the purchase money and make title, the jurisdiction conferred was exercised and at an end. Thompson v. Cox, 8 Jones, 311; Evans v. Singletary, 63 N. C., 205.

From the statement of the case of appeal by the judge, in connection with the clerk’s transcript from the record of the county court, it appears that no regular memorial was made up and entered of record, but that the proceedings throughout are indicated by mere memoranda and informal entries from which a record in form might be drawn out and which in legal intendment is .to be understood as existing. Gibson v. Partee, 2 Dev. & Bat., 530; Barnard v. Etheridge, 4 Dev., 295.

Taking the record then to be what the loose entries of the clerk would authorize'to be made up, from the entry “ order of sale, for decree see minutes” at February terrü, 1868, and the entry “report of sale confirmed and decree for.title” at May term, 1868, the legal conclusion is, that the court of pleas and quarter sessions exercised fully the jurisdiction it had over the subject and that the decree then rendered was’ a final one, as held in Thompson v. Cox and Evans v. Singletary, supra. So that there was no occasion for any-further action in the matter, either in the county court or any other.

If the decree in the county court at May term, 1868, was final and the same was fully executed by payment of the money and the execution of title to the purchaser, as is to be taken to be true from the fact of the purchaser’s being made a party to defendant’s motion in the cause, then by the 25th day of January, 1879, when the motion in the cause was made, there was no cause pending in which to make the motion and the only remedy of defendants was, as settled by a series of decisions in this court, by an action in the superior court commenced by summons as a substitute for a bill of review, or for a bill to impeach the decree for fraud. Covington v. Ingram, 64 N. C., 123; Thaxton v. Williamson, 72 N. C., 125.

But it may be said that the decree of the county court was not final, for the reason, that after confirming the sale and ordering title, it did not adjudge upon the matter of costs.- We do not think the finality of the decree was affected by that circumstance. The giving of costs -in equity and in cases of this kind in the courts of pleas and quarter sessions would not necessarily have followed the decree confirming the sale and ordering title to the purchaser. But it would have been a matter of discretion in the court. And as no reservation of the question of costs was contained in the decree of May-term, 1868, which disposed of-the whole merits of the proceeding, the import of the decree, otherwise certainly, final, is that the court exercised its discretion and refused costs; or, the cause not being retained for further orders and directions, that the costs were waived and lost. Daniel Chancery 15, 16. Neither did the entry of the cause on the docket of the superior court at fall term, 1869, followed by the memorandum, “judgment against the petitioner for costs,” alter the case.' The whole object of the petition was accomplished and the suit at an end, and the docketing of the case in the superior court was therefore not authorized by section 400 of the code, and availed not to disturb the finality of the decree of the county court at its May term, 1868.

We must therefore declare our opinion to be, that the remedy of the defendants, if any they have, is not by a motion in the cause, but' by an action with proper parties thereto in the superior court in the nature of a bill of , review, or a bill impeaching the decree for* fraud or other sufficient cause. There is no error in the judgment of the superior court affirming the judgment of the probate court disallowing defendants’ motion.

No error. Affirmed.