Grubb v. . Lookabill

Smith, C. J., (after stating the facts as above). We do not concur in the opinion of the Court, that the heirs of the vendor, Thomas P. Allen, to whom, upon his death, the land embraced in his contract with Lookabill descended, assuming it not to have been devised, since the legal estate was in them, are not necessary parties to the action in order to a fqll relief, and the divesting and transferring the same to the purchaser. “ Before the passing of the act of 1797,” (The Code, § 1492,) says Nash, C. J., “ where a vendor entered into a bond to make title, and died before so doing, his heirs were the proper persons on whom the purchaser had. the right to call for the necessary conveyance. If they refused to convey the title, the person was driven into a Court of Equity, and to such a suit the heirs were necessary parties.” Osborne v. McMillan, 5 Jones, 109. *271 For a similar reason, when the personal representative of the deceased vendor seeks to- subject the land to the payment of the debt contracted in the purchase, he must make the heirs of his intestate parties, in order to an effectual sale of the descended legal estate. ■ The action seems to have been prosecuted upon a construction of the statute referred to, that inasmuch as the administrator of the vendor could himself make title upon payment of the purchase money, his presence in the action was sufficient to accomplish the double object of securing the money and passing the estate to a purchaser, when sold for that purpose. Perhaps this view is admissible, if the bond had been proved and registered, as required under the intimation expressed in the opinion in Hodges v. Hodges, 2 D. & B. Eq., 72, and White v. Hooper, 6 Jones Eq., 152, without the presence of the vendor’s heirs, if, in other respects, the provisions of the statute had been complied with. For the form of the proceeding adopted aims at the same thing, the enforcement of the contract, by subjecting the land to the debt incurred in its purchase, and the debtor not only makes no objection, but gives his consent to the sale, and the sale has at least the effect of passing his equitable estate in the premises, and also the part of the legal estate which vested in the said Ambrose D. Allen. Again, as to the objection that Lookabill’s heirs were not introduced into the action in his place after his death, it may be observed that certain counsel were expressly authorized to appear for them, and the style of the case was immediately changed, as if they had become parties under that general designation, and so it is declared in the decretal order of the ensuing term in the recital, “ That all the parties, and their representatives, are before the Court.” The Only further action in the cause, after the death of the vendee, was to substitute a new purchaser in place of the-first, and when the terms of the decree for title were reported *272 as having been complied with, and a conveyance executed, to confirm the report. But if the heirs were necessary parties after the ancestor’s death to give efficacy to an order which was made in his life-time, and when carried out passed the title, as of that date, as ruled in Vass v. Arrington, 89 N. C., 10, it is held, at least when the record contains no notice or suggestion of the death of a party, that a judgment rendered after such death is irregular and voidable, but not void in the absence of any action to make it so. Lynn v. Lowe, 88 N. C., 478. There is no force in the objection that the land is not sufficiently described in the petition for a settlement of the estate. It is clear that the full equitable estate in the land, and a fractional part of the legal estate, is vested in the plaintiff, and this warrants a recovery. There is no error, and we affirm the ruling and judgment of the Court. No error Affirmed.