Wayne County NcArchives Court.....W. T. Dortch, Daniel Ward V. 1873
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Guy Potts http://www.genrecords.net/emailregistry/vols/00017.html#0004214 September 22, 2008, 9:33 pm

Source: Nc Reports
Written: 1873

Daniel G.A. Ward et al v. W.T. Dortch et al
June Term 1873

The removal of a trustee at the request of the cestui que trust, and the 
appointment of some other person to sell the lands conveyed in the deed, in 
which such trustee is appointed, is purely a matter of discretion for the 
Court below, and one which the Court should not do without good cause.

(Stone v. Latham, 68 N.C. Rep. 44, cited and approved)

CIVIL ACTION, tried before Clarke, J., at Spring Term, 1873, of the Superior 
Court of Wayne County, upon the following facts, constituting the "case 
stated" and sent to this Court.

This action is brought by the plaintiffs, who are cestui que trusts against 
the defendant, Dortch, the trustee in a certain deed of trust made by the 
other defendant, Geo. W. Collier, to said Dortch on the 1st of February, 1867, 
for the purpose of compelling him, the trustee, to sell the land conveyed in 
said deed for plaintiff's benefit.

At the Special January Term, 1873, his Honor, Judge Tourgee, by consent of 
parties, made an order to sell the land conveyed as aforesaid, and appointed 
the trustee as commissioner to make the sale. The sale was advertised, and on 
the day the land was offered for sale at public auction, when $18,000 was all 
that was bid for the same, and the commissioner considering that sum 
insufficient and under its value, withdrew it from sale and reported to the 
next term of the Court that there was no sale, and introduced affidavits 
tending to show that the land would be being sold in December next, bring at 
least $30,000.

It was then moved on the part of the plaintiffs that the defendant, Dortch, be 
removed from the trusteeship, and some one else appointed to sell the lands in 
his stead, which motion was refused on the ground that Dortch had no notice of 
such motion.

Plaintiffs then moved that the commissioner heretofore appointed be ordered to 
sell the lands on the terms expressed in the former order, and that he report 
the sale at the next term of the Court. Motion likewise refused.

His Honor, then on motion of defendants, ordered that Wm. T. Dortch (the 
defendant) sell the lands mentioned in the pleadings on the 1st Monday in 
December next, on the terms set forth in the decree heretofore made in this 
cause.

From which order, plaintiffs appealed.

Isler, for appellants:

1. The Court has the power to remove a trustee without any formal notice. 
Stilley and wife v. Rice, 67 N.C. Rep. 175.

2. The postponing the time of sale to some other different from that expressed 
in the mortgage, is impairing the obligation of the contract. Branson v. 
Kinzie, 1 How. U.S. 311; Metraken v. Hayward, 2 How. U.S. 608.

Smith & Strong, contra:

Dortch was trustee and was directed as such to make the sale.

The Court had the right to prescribe the time of a sale made under its order, 
though disregarding the particulars of the deed, if the interests of outside 
parties entitled to the surplus require a donation in order to insure a sale 
for value. Bryant & Reed v. Scott.

The order to sell was made at a previous term and acquiesced in. No complaint 
can now be made nor appeal taken thereupon. The decree was by consent, and as 
the point of ruling complained of the plaintiff, proposed a decree containing 
same terms.

Ruling of NC Supreme Court - Settle, J. - Let it be certified that there is no 
error.

Per Curiam                 Order Affirmed

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