Ipock Ex Rel. Ipock v. North Carolina Joint Stock Land Bank of Durham

Bkogden, J. 1. Did Judge O. H. Allen, an emergency judge, not holding court in Lenoir County, have the power on 13 December, 1924, to approve and confirm the order of the clerk, made on the same date, *796 authorizing and directing the guardian and executrix to borrow the sum of $22,000 from the defendant and execute and deliver a valid deed of trust securing said indebtedness ? 2. Did Judge Henry A. Grady, judge presiding and holding the courts of Lenoir, have the power to approve the said order made by Heath, clerk, on 13 December, 1924, nunc fro tunc, on 23 November, 1933? C. S., 2180, provides that “the judge of the court” shall approve special proceedings instituted for the sale or mortgage of lands by a guardian. For such purpose of approval, “who is the judge of the court?” Article IY, section 11, of the Constitution of North Carolina provides that “the General Assembly may by general laws provide for the selection of special or emergency judges to hold the Superior Courts of any county, or district, when the judge assigned thereto, by reason of sickness, disability, or other cause, is unable to attend and hold said court, and when no other judge is available to hold the same. Such special or emergency judges shall have the power and authority of regular judges of the Superior Courts, in the courts which they are so appointed to hold; and the General Assembly shall provide for their reasonable compensation.” Therefore, it is manifest that the power of special and emergency judges is defined and bounded by the words “in the courts which they are so appointed to hold.” Consequently as Judge O. H. Allen was not holding the court in Lenoir County on 13 December, 1924, he was without authority to approve the special proceeding. This phase of the ease is expressly decided in Greene v. Stadiem, 197 N. C., 472. The Court is not inadvertent to O. S., 766(b), Michie’s Code of 1931. If it conflicts with the Constitution, of course it amounts to nothing; but granting that it does not conflict with the Constitution, it is not determinative in the decision of this case. The second question of law involves the power of regular judges of the Superior Court to enter a rmnc fro tunc judgment. In the case at bar such judgment was entered approximately nine years after the original judgment made by the clerk. However, in order to work out a solution of the legal problem presented, it is necessary to recapitulate the facts. A guardian applies to the clerk of the Superior Court of a county for an order to mortgage the land of wards in order to secure money to pay off and discharge pressing indebtedness of the estate of the wards and to eliminate imminent litigation. The clerk of the Superior Court had the power to hear the petition, find the facts, and to conclude under the circumstances then existing whether the best interest of the wards *797 would be subserved by the conveyance of tbe property for the purpose of securing money to pay debts. In the exercise of such jurisdiction the clerk found the essential facts and duly made an order authorizing and directing the guardian to borrow the money and to execute the deed of trust. Pursuant to such order the guardian received $22,000 in money from the defendant, which was actually used and expended in discharging indebtedness for which the estate of the wards was liable. There is no challenge to the truth of any of these facts; nor is there a suggestion of fraud, overreaching, undue advantage, or even the secret presence of any inequitable element in the transaction. Manifestly, under such circumstances, the approval of a regular judge of the Superior Court as a practical matter, would have doubtless been forthcoming. The same facts were before the chancellor, Henry A. Grady, in November, 1933. The same facts were unchallenged. Neither, at that time, was there any suggestion of fraud or hint that the estate of the minors had not received the full measure of all benefits flowing from the transaction. Under these circumstances the Court is of the opinion, and so holds that the judgment nunc pm tunc was within the power of a chancellor. Indeed, the ease of Powell v. Fertilizer Co., 205 N. C., 311, is decisive. The original record in that case discloses that Sarah Powell in 1931 as guardian, filed a petition for authority to mortgage lands of the deceased, and that no supporting affidavits were offered and no formal hearing was had. The clerk made an order permitting the conveyance and twenty-one months thereafter Judge Daniels, duly holding the court of the county, entered an order as follows: “Approved this 10 November, 1932, nunc pro tunc as of the 10th day of March, 1931.” The Court said: “The note and deed of trust were executed by the guardian pursuant to order of the clerk of the Superior Court, and before same was approved by the judge as required by C. S., 2180, but the judge’s approval was later entered nunc pro tunc. This cured the defect.” The question of ratification arising from the several proceedings instituted by the plaintiffs expressly recognizing the existence and validity of the deed of trust of defendant, is debated in the briefs, but the view of the law as above set forth renders a decision on that point unnecessary. Affirmed. ScheNck, J., took no part in the consideration or decision of this case.