In Re Propst

Connor, J., after stating the case: While we are of the opinion that his Honor properly refused to dismiss the motion of Mrs. Carswell and continued the restraining order, we do not intend to suggest that either the guardian or Mrs. Propst have been prompted in the action by any purpose to take any unfair advantage of Mrs. Carswell or deprive her of her property. We think that his Honor had jurisdiction to make the order and either to hear himself, or direct the Clerk to hear, the evidence upon the motion made by Mrs. Carswell and make such orders as were proper. It is evident 'that, in the opinion of the children of Mrs. Carswell, she was not competent to dispose of her interest in the land and take charge of the proceeds. The record of the proceeding before the Clerk to have her adjudged an idiot and have a *566 guardian, appointed is not before us. It does not appear that sbe was brought before the Clerk, or tbe jury, in person. While it is not so required by the statute (Rev., sec. 1890), and in many eases would be inconvenient or impracticable to do so, where there is no such reason it would be prudent to have the person whose status and rights are to be so vitally affected personally before the Court, or, at least, to give such notice as will give information of the proposed action in ample time to be present. If the fact be as set out in the affidavit, such notice was not given nor such time allowed. This is all the more important in view of the fact that the verdict of the jury -and proceedings thereunder are conclusive until set aside in some proceeding instituted for that purpose. So frequently persons falling within the class called idiots are so nearly on the shadowy border line that nothing but personal examination will enable the jury or Court to pass intelligently upon their capacity to attend to their business. Arrington v. Short, 10 N. C., 71; Sprinkle v. Wellborn, 140 N. C., 163 (p. 180). The Court having acquired jurisdiction until a final disposition of the cause and direction of the disposition of the fund, it is competent to make or set aside orders and do all things, coming within the scope of the pleadings, necessary to protect the interests of the parties. In the decree herein the guardian was directed to make title upon the payment of the purchase-money. It seems that he has made title without having collected the purchase-money. The attention of the Court being called to- this unauthorized action, it is its manifest duty, before any intervening rights have accrued, to arrest further action until the rights of the ward were protected. It is sometimes difficult to define a decree which deprives the Court of taking further action and compels the parties to resort to a new action. In Council v. Rivers, 65 *567 N. C., 54, Pearson, C. J. citing Mason v. Miles, 63 N. C., 564, and other eases, says: “These cases assert the power of the court of equity, upon petition for the sale of lands for the benefit of infants, to compel the purchaser, by orders made in the cause, to perform specifically his contract.” Lord v. Beard, 79 N. C., 5; Hoff v. Crafton, 79 N. C., 592; Murrill v. Murrill, 84 N. C., 182; Settle v. Settle, 141 N. C., 553. Certainly it was proper to stay further encumbrance of the title until the purchase-money was paid. It may be that upon the final hearing it will appear that the rights of the ward have been fully protected; if so, such orders may be made in the premises as are proper. The order of his Honor simply holds the matter in statue quo until the final hearing, and in that respect we think it was wisely and properly made. It-is manifest that no inquiry can be made in this proceeding regarding the validity of any deed made by Mrs. Carswell prior to the appointment of petitioner as guardian. We note that no affidavits are filed by disinterested persons regarding the necessity for the sale of the land. This is unusual.. The statute (Rev., sec. 1798) contemplates that, in addition to the verified petition of the guardian, the Clerk shall require other satisfactory proof of the truth of the matter alleged. The Judge, exercising the functions of a Chancellor, where sales of this character were made pursuant to proceedings in courts of equity, always referred the petition to the Clerk and Master, who took evidence and reported his conclusions to the Court. It is usual, since these large and important equitable functions are conferred upon the clerks, to accompany the petition with affidavits showing the necessity for the sale. The practice is to be commended and should not, without good cause, be departed from. We note also that the petition was verified on 16 February, the order made on the 18th, and the report of sale and order of con *568 firmation made on tbe same day, indicating a 'degree of baste not consistent with that investigation and consideration usual and proper to be bad in sneb proceedings. Tbe sale is made privately to tbe wife of tbe petitioner, without any proof that tbe price is full and fair, other than tbe statement of tbe guardian of tbe ward and husband of tbe purchaser. It may be that tbe rights of tbe ward have been protected, but tbe safety of titles and prevention of future attacks would have been secured by more circumspection. Tbe records of our courts admonish us that much litigation, frequently involving property interests and character of men after death of tbe actors, comes from a disregard of rules of procedure based upon experience. In tbe present condition of tbe record we forbear making any observations upon tbe merits of tbe case. ITis Honor correctly refused to dismiss tbe motion. While it is true that one for whom a guardian is appointed must be represented, in all judicial proceedings, by tbe guardian, it is entirely proper, either in bis own person or through any friend, for him to call attention to any matter then pending and under tbe control of the Court, to tbe end that it may be investigated and his rights protected. The judgment of bis Honor must be affirmed, to tbe end that other and further proceedings may be bad in the cause. Affirmed.