Simonton v. . A. S. Brown and Wife

Supreme Court of North Carolina

Simonton v. . A. S. Brown and Wife

72 N.C. 46

DecidedJanuary 5, 1875

StatusPublished

This text of 72 N.C. 46 (Simonton v. . A. S. Brown and Wife) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Simonton v. . A. S. Brown and Wife, 72 N.C. 46 (N.C. 1875).

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Opinion

Pearson, C. J.

The land, in controversy, had been assigned to the feme defendant, for her dower, as the widow of Augustus Byers. The order to sell the land was made in a proceeding, to which she was not made a party. It follows that, as to her, the order and the sale and deed made to plaintiff in pursuance thereof, were all void and of no legal effect. The question is, did the amendment by which she was afterwards made a party, and the allegation of the insolvency of the sureties on the administration bond was added, give effect to the deed % There is no principle of law or equity, by which a deed, void at the time of its execution, can be made valid and have effect, by an amendment in the original proceeding. This is too plain for discussion.

"After the necessary amendments were made in the proceeding, Carlton v. Byers, the proper order was to direct a re-sale of the land. The equity of the plaintiff to be allowed the amount, paid by him as a purchaser under the first order of sale, would have come on for further directions, upon the report of sale, and for distribution and application of the fund.

This is an action to recover land. Upon what principle of orderly procedure this action could be mixed up and confounded with a proceeding to sell land and make assets, the Court is not able to comprehend.

There is error. Judgment reversed. This will be certified.

Pee Cxjkiam. Judgment reversed.

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Pearson, C. J.

The land, in controversy, had been assigned to the feme defendant, for her dower, as the widow of Augustus Byers. The order to sell the land was made in a proceeding, to which she was not made a party. It follows that, as to her, the order and the sale and deed made to plaintiff in pursuance thereof, were all void and of no legal effect. The question is, did the amendment by which she was afterwards made a party, and the allegation of the insolvency of the sureties on the administration bond was added, give effect to the deed % There is no principle of law or equity, by which a deed, void at the time of its execution, can be made valid and have effect, by an amendment in the original proceeding. This is too plain for discussion.

"After the necessary amendments were made in the proceeding, Carlton v. Byers, the proper order was to direct a re-sale of the land. The equity of the plaintiff to be allowed the amount, paid by him as a purchaser under the first order of sale, would have come on for further directions, upon the report of sale, and for distribution and application of the fund.

This is an action to recover land. Upon what principle of orderly procedure this action could be mixed up and confounded with a proceeding to sell land and make assets, the Court is not able to comprehend.

There is error. Judgment reversed. This will be certified.

Pee Cxjkiam. Judgment reversed.

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Bluebook (online)

72 N.C. 46, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simonton-v-a-s-brown-and-wife-nc-1875.