Wilson ex rel. Wilson v. Pemberton

147 S.E.2d 217, 266 N.C. 782, 1966 N.C. LEXIS 1446

• Court: Supreme Court of North Carolina
• Decided: March 30, 1966
• Status: Published

Opinion

Pless, J.

G.S. 33-31 provides that the sale or mortgage of a minor’s real estate shall be allowed upon compliance with its terms, which was not done in this instance. The petition was not filed by a guardian (who is under bond and has a continuing and quasi-permanent responsibility for his ward’s interest) but by a guardian ad litem. “A clerk of the Superior Court in this State has no jurisdiction with respect to infants or with respect to property, real or personal, of infants, except such as is conferred by statute. He has power to authorize the sale of property, real or personal, owned by an infant, only upon the application of his duly appointed and duly qualified guardian by petition duly verified by such guardian. An order made by a clerk of the Superior Court for the sale of the infant’s property, real or personal, on the petition of one who is not his duly appointed and duly qualified guardian is void. All proceedings under color of such order are void, and no rights to the property of the infant can be acquired under such order. A purchaser of an infant’s property at a sale made under an order which is void because the clerk who made the order had no jurisdiction of the proceeding in which the order was made, acquired no right, title, interest, or estate in said property, adverse to the infant.” Buncombe County v. Cain, 210 N.C. 766, 188 S.E. 399. Further, the judge did not specify how the proceeds of the loan should be applied, which is a requirement of the statute. While the order of the Clerk holds the proposed conveyance to be for the best interest of the minors, the defendants in their pleadings admitted that the interest of the minor, Rachel Rudd Wilson, was made security for the debts of her mother which had been incurred without advantage to the minor and also that a major portion of the proceeds of the new debt was used to pay off an old debt to the lender. This does not “materially promote” the interest of the minor. For the above reasons we hold that the conveyance by the guardian ad litem of her interest to her mother and the later execution of the deed of trust upon the interest of the minors by the guardian ad litem was void and that foreclosure of the deed of trust will not convey any interest of the minors in the property concerned.

In view of the fact that Elizabeth Rudd Rimmer executed the deed to the minor plaintiffs herein for the purpose of obtaining the execution of the deed of trust involved; and since the deed of trust has been adjudged null and void, in fairness to all parties concerned, particularly the creditors of Elizabeth Rudd Rimmer, we hold that the deed to the minor plaintiffs is likewise void. This puts the plaintiff and her creditors in substantially the same status they were before the execution of these instruments.

Reversed.

Moore, J., not sitting. PaeKer, C.J., and Bobbitt, J., concur in result.