Stainback v. . Harris

Supreme Court of North Carolina

Stainback v. . Harris

20 S.E. 277, 115 N.C. 100

DecidedSeptember 5, 1894

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This text of 20 S.E. 277 (Stainback v. . Harris) 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

Stainback v. . Harris, 20 S.E. 277, 115 N.C. 100 (N.C. 1894).

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Opinion

Shepherd, C. J.:

We do not think that under the particular circumstances of this case the counsel was precluded from insisting that the issues raised upon the pleadings should be submitted to the jury. The questions to be determined, therefore, are whether the issues certified by the Clerk were material.

1. As to the first issue, we agree with his Honor that it should not have been submitted. There is not the slightest *104 suggestion that the debt upon which the judgment was taken against the administrator was not due by his intestate, and the mere fact that the administrator made no defence to such a claim cannot invalidate the judgment.

2. In refusing to submit the second issue, or to order the taking of an account, we think there was error. Before descended lands can be subjected to the payment of the indebtedness of the ancestor, it must be shown that the personal assets are insufficient.or have been exhausted in due course of administration (Womack’s Digest, 4885), and as the answer denied this, an issue was raised which should have been tried before making a decree of sale.

3. As to the third issue, we very much doubt whether in a proceeding of this kind the heirs, without alleging any independent title in themselves, can by a mere general denial put the administrator upon proof of the ancestor’s title. To permit this would result in much unnecessary expense, inconvenience and delay in the settlement of estates. In this case no prejudice can possibly be done the heirs, as the decree purports to operate only upon “the interest and estate ” of their ancestor. If he has any interest or estate, they are of course bound by the decree; if he has none, or if the heirs have any interest or estate independent of their ancestor, they are clearly not estopped by the form of this decree. When the decree is to be so framed, we are inclined to the opinion that such a general denial by the heirs should not be considered. The case of Egerton v. Jones, 107 N. C., 284, and other decisions, do not present this point. The .-objection there is taken by parties claiming the land or some interest therein, and when it is shown that the decedent has .parted with his title, the jurisdiction is defeated. In the cases like the present it would seem that the heir should not be permitted to show by mere general denial that his ancestor had no title, and the jurisdictional question in such an instance would therefore not arise. New trial.

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Shepherd, C. J.:

We do not think that under the particular circumstances of this case the counsel was precluded from insisting that the issues raised upon the pleadings should be submitted to the jury. The questions to be determined, therefore, are whether the issues certified by the Clerk were material.

1. As to the first issue, we agree with his Honor that it should not have been submitted. There is not the slightest *104 suggestion that the debt upon which the judgment was taken against the administrator was not due by his intestate, and the mere fact that the administrator made no defence to such a claim cannot invalidate the judgment.

2. In refusing to submit the second issue, or to order the taking of an account, we think there was error. Before descended lands can be subjected to the payment of the indebtedness of the ancestor, it must be shown that the personal assets are insufficient.or have been exhausted in due course of administration (Womack’s Digest, 4885), and as the answer denied this, an issue was raised which should have been tried before making a decree of sale.

3. As to the third issue, we very much doubt whether in a proceeding of this kind the heirs, without alleging any independent title in themselves, can by a mere general denial put the administrator upon proof of the ancestor’s title. To permit this would result in much unnecessary expense, inconvenience and delay in the settlement of estates. In this case no prejudice can possibly be done the heirs, as the decree purports to operate only upon “the interest and estate ” of their ancestor. If he has any interest or estate, they are of course bound by the decree; if he has none, or if the heirs have any interest or estate independent of their ancestor, they are clearly not estopped by the form of this decree. When the decree is to be so framed, we are inclined to the opinion that such a general denial by the heirs should not be considered. The case of Egerton v. Jones, 107 N. C., 284, and other decisions, do not present this point. The .-objection there is taken by parties claiming the land or some interest therein, and when it is shown that the decedent has .parted with his title, the jurisdiction is defeated. In the cases like the present it would seem that the heir should not be permitted to show by mere general denial that his ancestor had no title, and the jurisdictional question in such an instance would therefore not arise. New trial.

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