Holmes v. . Davis

Fairoloth, O. J. The plaintiff and others had an ex parte proceeding to sell land for division and in the due course of that action, land was sold and purchased by the defendant, who gave his note for the purchase price. The sale was confirmed in 1875, and the commissioner was ordered to make a proper deed to defendant as soon as the purchase money was paid, and to pay the money out to the parties entitled. All the other petitioners were paid off, and several years after the decree of confirmation was recorded and order for title and distribution, the defendant, in 1893, executed his note to plaintiff for the share of his wife, which had not been paid, promising to pay the balance of the purchase money belonging to the plaintiff’s wife, expressly reciting ‘ ‘when this note is paid in full said commissioner shall execute a deed” for the land, and this action is on that note. Defendant contends • that plaintiff’s remedy is by motion in the ex parte petition above referred to, and moved to dismiss this action. His Honor allowed the motion and plaintiff appealed. This is the only question. The defendant relies upon the principle announced in Council v. Rivers, 65 N. C , 54, and numerous similar decisions since. There can be no doubt about the power of the Court to enforce the sale contract by orders in the cause. That means the contract made with the Court through its commissioner and the parties are not allowed to harass each other with hew actions. In the present case the facts found by his Honor are that a final judgment had been rendered in the original action, *270 an order to make title as soon as the money was paid that the commissioner collected and paid to the parties ali that was due them, except his wife’s share, and after nearly twenty years plaintiff and defendant entered into a new contract as to the unpaid share. No one, therefore, had any further interest in the original proceeding except plaintiff and defendant. They were sui juris and the new note was executed to suit their own convenience, as we assume, reciting such particulars as were agreed upon. This we think differs the case from that of Council v. Rivers, supra. This view was taken in Thompson v. Shamwell, 89 N. C., 283, and Causey v. Snow, 120 N. C., 279, where the original cause was ended and the cases are referred to. They are also found in Clark’s Code, pages 645, 650. His Honor’s conclusion in the case was upon the ground that the remedy was in the original petition, which we think was an erroneous .conclusion. Eeversed.