Wayne County NcArchives Court.....B. P. Powell, James Lee V. 1873
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Guy Potts http://www.genrecords.net/emailregistry/vols/00017.html#0004214 September 22, 2008, 11:43 am

Source: Nc Reports
Written: 1873

JAMES LEE and wife, SUSAN, and others v. B. P. HOWELL and others.
June Term 1873

A guardlan had a right to purchase the land of his wards at a sale by a clerk 
and master of our former Courts of Equity, made by order of such Court.

And our present Courts have the power to order their clerks to make title 
directly to subsequent bona fide purchaser, when it appears that no title was 
made by the clerk and master to the first purchaser, or if made was lost.

Simmons v. Hassell, 68 N. C. Rep. 213; Hutchison v. Smith, Ibid. 854, cited 
and approved.

CIVIL ACTION, tried before Tourgee, J., at the January Term, 1878, of WAYNE 
Superior Court.

The plaintiffs, as heirs at law of one Gaston H. Alford claim a certain tract 
of land in the possession of the defendants, and bring this suit for a 
recovery of the same, and for $10,000 damages.


The defendants admit that the land belonged to the said Gaston H. Alford at 
the time of his death, and say that at Fall Term, 1853, the plaintiffs, who 
were minors, together with a sister, by their guardian, one Wm. K. Lane, filed 
a petition in the Court of Equity of Wayne county, praying a sale of the land 
described in the complaint of the plaintiffs, and which had descended to them 
from their father, the said G. H. Alford; that a decree for the sale was duly 
obtained, and that under the order of said Court of Equity, a sale thereof was 
made by the clerk and master; that the said Lane, the guardian of the 
petitioners and plaintiffs in this action, purchased the land for the sum of 
$3,025, for which he executed a bond with sureties, and that the master 
reported the sale to the next term of the Court, when it was in all respects 
confirmed, and the master was ordered by the Court to pass the said bond, 
given for the purchase money, to the guardian as cash, or to collect the same, 
and after retaining costs and allowances, to pay over the balance to the said 
guardian and make title; that a settlement was had between the master and 
guardian and the money was paid, but the master failed to execute a deed for 
the land by him so sold to the said guardian, or if he made one it was lost 
before registration.

These allegations in the defendants' answer, were submitted as issues to the 
jury on the trial, and found by them true.

The guardian, Lane, subsequently sold the land to various parties, and it was 
resold until it came by purchases into the hands of the defendants, who had no 
notice of the claims of the plaintiffs.

The defendants further alleged, which was likewise found true by the jury, 
that the said Lane had paid to Lee and wife, one of the plaintiffs in this 
suit, their share of the purchase money, and had received from them a receipt 
or release in full for the same, the feme plaintiff being privately examined, 
and had also settled in full for the several
shares of the other plaintiffs.

The defendants demanded that the plaintiffs execute a conveyance to them, 
releasing all title to said land, or that title be made to them in lieu of to 
Lane, whose deed was never executed, or if made was lost, as before set out.

The jury having found all the issues submitted to them in favor of the 
defendants, his Honor gave judgment against the plaintiffs for costs, and 
further ordered that the clerk of the Superior Court make title in fee for 
said land to the defendants according to their respective shares and interest 
therein, as set forth in their answer.

From this judgment defendants appealed.

Ruling from NC Supreme Court: There is no error. This will be certified.

PER CURIAM.                  Judgment affirmed.

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