Caffey v. . Osborne

Devin, J. The movants attack the order and judgment of the clerk authorizing the execution of a mortgage on decedent’s land by the plaintiff administrator, on two grounds: (1) That there was no authority in law for making such an order. (2) That the mortgage was in whole or in part to reimburse the plaintiff for money which he had borrowed to pay the debts of the estate. Originally, an administrator had no authority to deal with or encumber the real estate of his intestate, and where the personalty was insufficient to pay the debts, he could only file proper petition to sell the real estate to create assets for that purpose. But by statute, Acts 1913, ch. 49, the court was empowered in certain cases to permit him, instead of asking for an immediate sale of the real estate, to rent the same and to borrow the money to pay the debts and to repay such borrowed money from the rents; and by a later statute, Acts 1927, ch. 222, this power was further enlarged, as follows: “In lieu of renting said property or borrowing on the general credit of the estate, as hereinbefore authorized, the said executor, or administrator, may apply by petition, verified by oath, to the Superior Court, showing that the interest of the beneficiaries of the estate, for which he is executor or administrator, would be materially promoted by mortgaging said estate, in whole or in part, to secure funds to be used for the benefit of said estate, . . . which proceeding shall be conducted as in other cases of special proceedings; and the truth of the matter alleged in the petition having been ascertained by satisfactory proof, a decree may thereupon be made that a mortgage be made by such executor, or administrator, in his representative capacity, in such way and on such terms as may be most advantageous to the interest of said estate; but no mortgage shall be made until approved by the judge of the court, nor shall the same be valid unless the order or decree therefor is confirmed and directed by the judge and the proceeds of the mortgage shall be exclusively applied and secured to such purposes and on such trusts as the judge shall specify.” These statutes are brought forward as section 75 of the Consolidated Statutes (Michie’s Code). *255 It is apparent that the proceeding here attacked was carried out in substantial accord with the provisions of the statute. There were findings by the clerk upon the undenied allegations of the verified petition and upon satisfactory proof that mortgaging the land to secure sufficient money to pay the debts of the estate would materially promote'the interest of the beneficiaries of the estate. This order and the findings of the clerk were approved, and the execution of the mortgage directed by the judge of the Superior Court. The movants were parties to this proceeding and filed no answer, and no objection seems to have been raised until more than eighteen months after the mortgage was made pursuant to the order and judgment of the clerk and the confirmation and direction of the judge. The fact that the plaintiff paid the debts of the estate is not controverted. His good faith is in no way impugned. He was not an officious intermeddler. He was therefore entitled to be subrogated to the rights of the creditors whose debts be had paid. Williams v. Williams, 11 N. C., 69; Sanders v. Sanders, 17 N. C., 262; Turner v. Shuffler, 108 N. C., 643; Denton v. Tyson, 118 N. C., 542; Ray v. Honeycutt, 119 N. C., 510; Morton v. Lumber Co., 144 N. C., 31. The estate was still unsettled and unclosed, and the debts, so far as the heirs were concerned, were unpaid. Plaintiff would therefore have had the right to require a sale of the land, and this right was extended by virtue of the quoted statutes to the execution of a mortgage for the purpose of acquiring assets to pay debts. C. S., 74 and 75. While later events may have shown that some other method would possibly have produced a more favorable result to the heirs, the proceeding here seems to have been in all respects according to law, and the judgment of the court below must be Affirmed.