Kirkman v. . Phipps

Ruffin, J. The appellants certainly have no reason to suppose that a whit more favor will be extended to their motion than in the strictest law it is entitled to — delayed as it was to the last moment in the progress of the action, and until after they had assented, so far as by their conduct they could assent, to the jurisdiction of the court, and had asked and received its aid in the premises. It is not, however, in our opinion, necessary to rely upon any implied waiver on their part, in order to sustain the court’s jurisdiction of the cause. The action is not in form or scope, as counsel seem to think, a special proceeding instituted for the purpose of obtaining a license to sell the land of the intestate for assets ; nor is it one that properly, much less exclusively, belongs to the probate court. It is simply an appeal to the equitable powers of the court to avoid a sale and consequent sacrifice of the intestate’s property, until the uncertainty and cloud thrown upon it by the numerous and conflicting liens can be cleared up, and the true amount and character of the indebtedness accurately ascertained. To take such action) falls strictly^ within the line of the plaintiff’s duty as administrator — it being incumbent on him to protect the general creditors of the estate, as well as to adjust the respective rights of the judgment and mortgage creditors — and the relief sought was such as could be conveniently and effectually administered by a court of equity only. It was upon grounds *431 exactly analogous that the jurisdiction of the court was upheld in Pegram v. Armstrong, 82 N. C., 326, and Gulley v. Macy, 81 N. C., 356. Having jurisdiction for such purposes, and having taken cognizance of the cause, the court had the power and rightfully exercised it, to settle every question and give complete relief to all the parties. What earthly good could accrue to any one from an order of dismission at this stage of the case? Its only effect could be to dissolve the injunction, and thus leave the way open to the defendant, Mc-Adoo, to sell immediately, and for his single benefit, under his various mortgages, and thereby produce the very inconvenience which it is the object of the action and the policy of the law, to avoid. Even after a sale by him, and unless the purchaser should voluntarily satisfy them, the judgments liens, though entitled to priority over all other claims, could only be enforced through some proceeding to which the administrator and heirs are parties — thus proving that there could be no course pursued, so simple and satisfactory, as the one taken by the plaintiff,, of bringing all the parties before a court competent to have every necessary inquiry and account taken, and to ad minister the rights of all in one proceeding. See Hinson v. Adrian, ante, 61. There is no error. Let this be certified to the court below that the cause may be proceeded with according to law. No error. Affirmed.