Pender County NcArchives Court.....Horace Chappell Et Al, Lucretia Lictie V. 1892 ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/nc/ncfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Connie Ardrey n/a December 22, 2011, 10:16 am Source: N C Reports Written: 1892 Lucretia Lictie v. Horace Chappell et al Motion in the Cause - Petition to Make Assets - Practice 1. A motion in the cause is the proper remedy to attack a final judgment when, in a proceeding to sell land for assets, begun in 1881, it appeared there had been a sale, under order of the Clerk, pending an appeal to the Judge upon a question affecting the validity of the order, which order was reversed upon such appeal, and when it further appeared that in 1885 the matter was ordered to be suspended, pending the finding of material facts by a referee, and that there was an order by the Judge in 1886 affirming the order of sale but not the confirmation thereof. 2. A motion in such case to vacate the order of sale, and to allow the defendants, the intestate's heirs at law, to pay the debts of the estate, was allowed by the Clerk, and affirmed on appeal by the Judge, and remanded to the Clerk for the purpose of notifying the purchaser to show cause why the sale should not be set aside, and after successive references was finally heard and allowed: Held, no error. The Judge had power, under Acts of 1887, chapter 276, to determine the whole matter in controversy. This was a Special Proceeding, begun before the Clerk of the Superior Curt of Pender County, on the 17th January, 1881, by plaintiff, as administratix of Hinton Chappell, deceased, to sell certain lands in Pender County to raise assets to pay the debts of the estate, and finally heard before Winston, J., at the March Term, 1892, of Pender Superior Court. The plaintiff is the widow and administratrix of her deceased husband, Hinton Chappell, but since his death intermarried with her present husband, W. W. Lictie. The defendants, Horace Chappell et al, are the only heirs at law of said Hinton Chappell, and have been made parties to the action and file their answer resisting the prayer of the petition of the administratrix to sell the land. The case was heard by the Clerk on the 14th day of March, 1881, both plaintiff and defendants appearing, and the Clerk granted license to the administratrix to sell the lands of the estate to make assets. From that judgment the defendants appealed to the Superior Court. Subsequent to the time when the appeal was taken, the plaintiff sold the lands of her intestate at public auction for cash, at which said sale E. Porter became the purchaser, and a deed was made and executed to him by the administratrix. When the sale was made does not appear of record, neither does any referee to whom the case has been referred find that fact, or what the land brought at said sale. There is no report of sale by the administratrix on file. There was an order of the Clerk confirming the sale of the land to E. Porter in all respects, but the order has no date, neither does any referee find as a fact when it was issued, or what the land brought at said sale. At June Term, 1881, of the Superior Court of said County, Judge Graves reverses the decision of the Clerk, but the order does not specify in what particular, and refers the case to A. H. Paddison, a referee, to find the facts and to report to the next term of Court. Referee Paddison finds in substance - 1. That the debts of the estate did not exceed one hundred dollars. 2. That the value of the decedent's personal property exceeded the amount returned by the administratrix by ten or fifteen dollars. 3. That the personal effects had not been squandered. 4. That the plaintiff Lucretia Lictie was the lawful widow of the decedent Hinton Chappell. 5. That the administratrix rendered no account as administratrix. 6. That she was, and had been, insolvent. 7. That a sale of the land of the intestate, which did not exceed in value of seventy five dollars, was necessary for the payment of the debts of the estate. Of the one hundred dollars, as amount of debts of the estate, said referee found that fifty dollars thereof was due the plaintiff and H. R. Chappell. To this report of referee Paddison defendants filed exceptions, excepting to the referee's finding that fifty dollars was due plaintiff, and that it was necessary to sell the lands. At the Fall Term, 1885, of said Superior Court, Judge McKoy, then presiding, sustained defendant's exception to referee Paddison's report allowing fifty dollars to the widow, and ordered that the sale of the land be suspended till further ordered, and at the same time ordered that referee Paddison reform his report in accordance with the said order. At March Term, 1886, Paddison being out of the State, the Court, Judge Gilmer presiding, appointed W. T. Bannerman a referee to reform Paddison's report so as to conform to the Judge McKoy's ruling. Bannerman made his report to May Term, 1886, reopening the account, and found debts due by the estate amounting to $180.25, and finding also that a sale of the land of the decedent was necessary to pay the debts of the estate. Defendants excepted to this report. At September Term, 1886, Judge Clark presiding, the Court overruled the exceptions, except that the allowance for certain attorney's fees was reduced from one hundred to fifty dollars, and the Porter judgment, which the Court found was not before it for adjudication, and affirmed the order of the Clerk granting license to the administratrix to sell the land to pay the debts. The defendants, through their counsel, John T. Bland, after the case was remanded, then appeared before the Clerk and moved the Court, (1) to be allowed to pay the debts due by the estate, and that the lands be not sold; (2) that the sale made pending the appeal and the order confirming the same be set aside. The Clerk allowed this motion, and the plaintiff appealed. At May Term, 1887, the order of the Clerk allowing defendants to pay up the debts and hold the land was affirmed, and the case remanded to the Clerk to give notice to E. Porter, the purchaser, to show cause why the sale and conveyance made pending the appeal should not be set aside, and to find what were referee Paddison's services in the case. On 8th August, 1887, E. Porter appeared before said Clerk after notice, and moved to dismiss the motion as to E. Porter, upon the grounds set forth in the written motion. The Clerk declined to dismiss the motion, and adjudged that E. Porter had not shown sufficient cause why deed and sale should not be set aside, and ordered that Porter's conveyance, to-wit, a deed from the administratrix, be set aside, and also the former's order of the Clerk affirming the sale. Porter appealed to the Superior Court. The cause had been referred to several gentlemen as referees, after Bannerman, but they failed to act. At September Term, 1890, the cause was referred to B. R. Moore to find the facts and report his conclusions of law. Referee Moore found, as a conclusion of law, that defendant's motion to be allowed to pay the debts of the estate, and that the lands thereof be not sold, was in apt time, and also found other facts. Plaintiff and E. Porter filed exceptions to referee's report, which wre heard and overruled by Winston, Judge, at March Term, 1892, of Pender Superior Court. Plaintiff and E. Porter appealed. The other facts appear in the opinion. No counsel for the plaintiff John D. Bellamy, Jr. for defendant NC Supreme Court Justice MacRae, J. - This case has become much confused and greatly protracted, but it seems at last to have reached its proper determination in the judgment which now comes to us upon appeal. Under the Act of 1887, ch. 276 (Clark's Code, sec. 255) the Judge now has final jurisdiction to determine the whole matter in controversy. The purchaser has had his day in Court; it is nowhere suggested that he paid any purchase money for the land at the sale which has been set aside, or it might have been proper to order that the same be refunded. Indeed, there is no report of sale or of the price at which the land was bid off; the record, while full in some respects, is lacking in others. We have found no error. (see court case for judge's full findings) Affirmed Additional Comments: In the NC Supreme Court September Term 1892 File at: http://files.usgwarchives.net/nc/pender/court/horacech2160gwl.txt This file has been created by a form at http://www.genrecords.org/ncfiles/ File size: 8.2 Kb