Ferrell v. . Broadway

*259 Montgomery, J. At August Term, 1887, of Lenoir Superior Court, there was an action pending in which W. D. Broadway, M. L. Broadway and Alice (Broadway) Faulkner, were the plaintiffs, and E. S. Broadway, their brother,, was the defendant. The object of the suit was to> have the defendant declared a trustee for them of a certain tract of land which had been sold by a decree of the Superior Court, made at Fall Term, 1880, and which land at its sale was purchased, as tire plaintiffs allege, by the defendant, for their benefit. At the aforesaid August term of the court, the issues joined by the pleadings were submitted to the jury, and the responses thereto were in' favor of the defendant, and judgment was rendered accordingly. The plaintiffs were infants under twenty-one years of age, and their next friend, W. B. Ferrell, had died before the verdict and judgment, and no other next friend had been appointed. The present proceeding grows out of a motion of the plaintiffs, who are now of full age, to have that verdict and judgment set aside for irregularity. Notice was served upon J. W. Grainger, a purchaser of the land- from E. S. Broadway. It was stated in one of the affidavits filed by the plainv tiffs (that of C. A. Broadway), “Thatthe alleged verdict and judgmentfin the cases of W. B. Ferrell and wife, et al, against E. S. Broadway, was by consent, and no evidence upon the issues nor proof of the facts were ever submitted to the jury, it being a merely formal submission- of the issues, and very soon thereafter the property came into the possession of I. W. Grainger ; that affiant was present when, this matter was sub-mil ted as above stated, and affiant verily believes that J. W. Grainger was also present and was aware of tbe manner in which tbe issues were submitted by the Court-. Grainger in his answer to the motion in his first affidavit did not nneqoiv- *260 ocally deny tbe statements made in tbe affidavit above mentioned, but be affirmed that tbe plaintiffs were estopped by the judgment of 1880, under which tbe lands were sold and purchased by tbe defendant. He did deny that be bad any connection either with procuring or obtaining tbe rendition of the j udgment at August Term, 1881, or that be knew of tbe proceedings in. tbe case; but that was not a denial of tbe statement in tbe affidavit of C. A. Broadway that, be, tbe defendant Grainger, knew that the verdict and judgment were made by consent of tbe counsel of the infant plaintiffs and the defendant E. S.. Broadway. But in a second affidavit filed two days after the first he did make a specific denial of knowl edge of the alleged compromise. He did not deny, however, that be bad knowledge before he took a deed for tbe land. Tbe defendant E. S. Broadway bad conveyed to Grainger tbe land after the verdict and judgment of 1887. Whether or not tbe issues were submitted and responded to by tbe jnry, as was affirmed by C. A. Broadway in bis affidavit, and tbe defendant had knowledge that they had been so submitted, were most material matters to be inquired into in tbis investigation. His Honor made no finding of fact upon that question, and we are satisfied that no just or intelligent disposition can be made by this proceeding until that fact is found. It is true that his Honor was not requested by the plaintiffs to' find that fact, but upon a thorough examination of the matters embraced in this motion, as they appear in the record, we have decided ex mero motu to remand the case that that fact may be found. Fertilizer Co. v. Reams, 105 N. C., 283. We are not intimating, by making this order, to remand tlie case, that a next friend of the infants can not agree to a consent decree or judgment in a case where all the facts are developed and found by the Court, and an order made that *261 tbe arrangement would be best for the interest of the infants. Such a case as that is not before us. ,But it may be taken to be the law that, in a case where issues are joined between infants on one side and tire adverse party, and no evidence is introduced, and nothing is done or said on the trial except that an agreement is entered into by the next friend or counsel of the inf ants,that the verdict shall be rendered against the infant, the verdict and judgment will not bind the infants. In such a case, the Court, would have no knowledge of the facts, and therefore could not exercise any supervision over the. interest of the infants. The object in having a next friend appointed for infants is to have their rights and interests claimed and protected, and the next friend or their counsel will not be permitted to, yield their rights to others by a consent verdict and judgment where the Court has exercised no supervision over the arrangement. His Honor found as a fact that the plaintiffs were not the heirs of J. W. Broadway, deceased, under whom they claim an interest in the land. If that finding were correct, there would be no use in remanding the case. But we think that was not an open question. It appears from the record that in a proceeding in Lenoir Superior Court for partition of a tract of land of J. W. Broadway, deceased, wherein the movers in this proceeding were plaintiffs and E. S. Broadway was defendant, an issue was submitted to the jury as to, whether the plaintiffs and defendant were heirs-at-law of J. W. Broadway and tenants in common of the land; that the response of the jury to the issue was in the affirmative, and partition was ordered, and no appeal was had therefrom. The legitimacy of the plaintiffs was from that time res adjudicata as, to all the world. Enniss v. Smith, 55 U. S., 400. Eemanded.