Best v. . Best

HoKE, J. There is doubt if an appeal properly lies in the present condition of the record; a sale of the land, in any event, being necessary, having been ordered for /the purpose of making assets. Arrington v. Arrington, 91 N. C., 301; Commissioners v. Satchwell, 88 N. C., 1; Hines v. Hines, 84 N. C., 122. Inasmuch, however, as the validity of all the other claims have been established and a decision on the Cogdell debt is required to a proper distribution of the assets, we have deemed it best, for the purposes of this appeal, to treat the judgment as one in its nature final, and decide the questions which the parties desired to present. Recurring, then, to the pleadings, it is now very generally understood that on a petition to sell land for assets, the heirs, in protection of the real estate, may plead the statute of limitations whenever such plea would be *516 available to the executor or administrator in protection- of the personalty; but, when the claim is evidenced by a subsisting judgment against the executor or administrator, .the heir is concluded as to its validity, unless the judgment can be successfully assailed on the ground of “fraud and collusion,” or “collusive fraud,” as expressed in some of the cases. This position, as laid down in Speer v. James, 94 N. C., 417, correcting an erroneous impression to the contrary which had been made by Bevers v. Park, 88 N. C., 456, has been again and again affirmed by this Court, and may be taken as accepted law with us. Lee v. McKoy, 118 N. C., 518; Byrd v. Byrd, 117 N. C., 523; Proctor v. Proctor, 105 N. C., 222; Smith v. Brown, 99 N. C., 377. This, then, being the recognized principle, and the claim in favor of Cogdell having been reduced to judgment in 1912, before a justice of the peace, having jurisdiction, and being on its face a-valid subsisting judgment, the- same can only be successfully resisted by plea and proof of fraud and collusion, vitiating the judgment, and, in order to such a defense, it is not sufficient to allege in general terms that there has been “fraud and collusion,” but the facts constituting the alleged fraud must be stated and with sufficient “fullness and certainty to indicate the fraud charged and to apprise the offending party of what he will be called on to answer.” Mottu v. Davis, 151 N. C., 237, citing Ritchie v. McMullen, 159 U. S., 239; 9 Eng. Pl. and Pr., p. 687. In the -present, case, the only facts alleged tending to show fraud are that the administrator, having qualified for the purpose of furthering the collection of a debt due to his own father’s estate, failed to plead the statute of limitations, and, second, that Cogdell, the father’s administrator, had made final settlement and had not accounted for present claim as part of the assets; but neither of these averments, nor both together, without more, amount to “collusive fraud.” Byrd v. Byrd, supra. It is nowhere suggested that the original demand, on which this judgment was rendered, was not a just debt, and it is admitted in the answer that the same has never been paid. The heirs of R. R. Best, the present defendants, had the first right, and were, no doubt, offered opportunity to *517 qualify as bis administrator, and, having failed to do it, the present plaintiff had prima, facie the right to qualify to collect his father’s debt, and neither the power nor the duties of Cog-dell, as administrator of T. W. Best, had necessarily ceased because a final settlement had been formally made. Unless in terms discharged from further execution of his trust, he still had power and may have been under obligation to go on and collect assets when opportunity was further presented. 18 Cyc., p. 146. There was nothing in the facts set out, therefore, which amounted to a valid defense against the claim in question, and the further and general allegation of fraud and collusion did not amount to issuable matter. On perusal of the pleadings, as they now appear, there was error in judgment overruling plaintiff’s demurrer, and the same must be set aside. Error.