McMillan v. . Reeves

Smith, C. J. (after stating the facts). It will be seen from the foregoing recapitulation of facts and rulings, that the appeal of the respondent Edwards brings up for review but two questions: ]. The validity and effect of the jurisdiction exercised in ordering and confirming the sale; and 2. The sufficiency of the proceeding to bind all the parties in interest by a conveyance made under the direction of the Court. The first of these exceptions has been most earnestly pressed in the argument, and the conclusion of the referee maintained by the counsel of the appellant, of a total want of jurisdiction and consequent nullity in the proceeding. There seems to be some misapprehension of the nature and purposes of the action, having for its object the sale of thedand and its conversion into personal assets, with which, ordinarily, the administrator has nothing to do, unless the fund to be raised by the sale of the realty is required to pay the debts and expenses of administration. The administrators came into possession of the debt due for the purchase money, and the legal estate in the land descended to the heirs, charged with its payment. They were but trustees holding the title as security for the payment of the *558 debt, and interested, only as distributees, in having it discharged by the proceeds of sale, the vendees being insolvent, and this being the only means of obtaining payment. Their interest in the subject-matter lay in securing an enlargement of the personal estate passing into the hands of the administrators, and with which he was chargeable. The action upon the note was brought, as well as that in the name of the,heirs-at-law, to regain possession of the land, to compel an appropriation of the land to the discharge of the debt, and the compromise was effected, primarily, to obtain the land exonerated from liability under the title bond as a security for the debt, to be surrendered for that purpose, in place of the personal obligation assumed in the note. It was proposed in this way, not to extinguish the debt and pro taato] diminish the personal estate in the administrator’s hands, but, as it was the only resource from which the debt could be made, to accept the land itself, the purchasers surrendering the title bond, and all equities and rights arising under it, as the sole security, and to raise the money by subjecting it to a sale. The result would of course be to replace for the note whatever sum could be made by selling the security, in the personal estate of which the note constituted a part. To this end the assent of the heirs was necessary, and was given in the adjustment arrived at, and consummated in the disposition of the two actions, as far as could be, by the parties to them. But the sum lost in the surrender of the note could only be reinstated, and the personal estate belonging to the distribu-tees made good, by the sale of the land, and hence recourse was had to the present proceedings to divest the title out of the heirs, who, being numerous and scattered, and some of them under age, could not, by voluntary deeds, effectually pass the title to a purchaser. It is not material to inquire into the question of the jurisdiction invoked in initiating the suit, since any objection on *559 this account is obviated by the removal of the c’áuse into the Superior Court, presided over bj1- the Judge, and the submission of all the parties thereto to his exercise of jurisdiction in the premises, as fully as if the action had there originated. As, then, the Court, assuming to exercise jurisdiction, did possess it fully over the subject-matter of the action and the partbs to it, in which all the heirs were represented by counsel, the cause was, in a strict sense, coram judice, under the rulings in West v. Kittrell, 1 Hawks, 493, and Boing v. Railroad, 87 N. C., 360, even without the aid of the act of 1887, ch. 276, which sustains the jurisdiction thus acquired, aud authorizes the Court “to proceed to hear and determine all matters in controversy in such action,” &c. No exception has been taken at any time by any party to the action. On the contrary, by their respeciive counsel, they have at all times assented to what was done, and even to the final decree rendered in the cause. The appellants’ objection has no force unless the proceeding, in its entirety, is a nullity, and it certainly cannot require argument to combat such contention. Norwood v. Peoples, 94 N. C., 167. There can be no successful resistance made to the proposition that a title obtained under the decree or judgment to which all those having any property or interest in the land are privy as parties, in a case whereof the Court has cognizance, will be perfected against them, and each, sui juris, estopped to dispute it. While the want of power in the Court to entertain and proceed with the cause has been most urged in the argument before us, the appellants’ only exception, appearing in the record, is the alleged ruling that the service of process on some of the defendants, on account of their number, would be sufficient to bind all under § 185 of The Code. The act does so indeed provide; but if it were otherwise, the whole of the *560 heirs are represented by counsel, professing to act for all, and the decree itself recites that the names of the defendants set out in the supplemental petition “ are all of the heirs-at-law of the said A. B. McMillan,” and that the attorneys, R. A. Doughton and W. C. Fields, appearing for them, “ have powers of attorney from said persons ” These facts come before us not controverted, and remove, if there be any force in the objection, the complaint of the ruling from which the appeal is taken. The other alleged defects set out in the appellants’ response seem not to have been relied on at the hearing below, and are not the subject-matter of the complaint presented in the appeal. There is no error, and the cause will proceed at the point where it was interrupted by the appeal, until fully disposed of. No error. Affirmed.