Shackelford v. . Miller

M-erjiimoN, J. In our judgment, no one of the appellant’s exceptions can be sustained. 1. The decree made at the fall term, 1888,of the superior court of Onslow county, confirming the report of the sale of land, was in execution of the decree directing the sale thereof, entered at the spring term of that court of the same year. It does not appear, that either of these decrees was irregular in any material respect. Each respectively pur *185 ports upon its face and by the record, to have been regularly entered at the terms mentioned. But it appears, that in fact the judge, who presided at the fall term, with the consent and sanction of all the parties to the action, or their attorneys, including that of the attornej's of the plaintiff, (Mrs. Shackelford, now Mrs. Brooks,) who makes the motion under consideration, indeed, at their instance signed the decree last made, two weeks after the fall term, while on and in the course of his circuit, during the term of the superior court of Carteret county. It was agreed at the fall term of the former court, that the decree of confirmation should be prepared, and when signed by the judge-out of term, be filed and entered as of that term. It is insisted that the signing of this decree out of term time and during the term of another court, rendered it irregular, if not void, and this is assigned as one ground for the motion to set aside that decree. Although the practice of signing decrees and judgments out of term-time, and away from the county in whose court the action is pending, is not to be encouraged, because it leads to more or less confusion and complaints, as in this case, and may sometimes be abused, or misunderstood, still it is not unwarranted, in cases where the parties to the action, or their counsel, consent to it. Indeed, sometimes it is necessary and important that such practice shall be indulged. Judgments and decrees thus signed are not thereby rendered irregular, much less void. The date of entering them should, however, always be noted on the record, in order to prevent confusion as to the time when they take effect, and when liens created by them become operative. This court has repeatedly upheld judgments and decrees thus granted, and it is well settled that such practice is not inconsistent with the constitution and statutes of the state. The constitution provides that, “ the superior courts shall *186 be, at all times, open for the transaction of business within their jurisdiction, except the trial of issues of fact requiring a jury.” Art. IV, § 22. There is no statute regulating the course of judicial procedure and practice, or rule of prac--tice that prevents the signing of judgments and decrees and entering them at any time, with the consent of the parties to the action. Hervy v. Edmunds, 68 N. C., 243; Harrell v. Peebles, 79 N. C., 26; Molyneux v. Huey, 81 N. C., 106. 2. If it be granted, that the decrees mentioned can be attacked for fraud, or fraudulent surprise in procuring them, to the prejudice of the plaintiff, by a motion in the action, the court below has found as facts, that there was neither fraud nor surprise on the part of any one; that her counsel in fact, represented no interest adverse to her; that the3 demeaned themselves as her counsel in entire good faith; that they, together with the other parties to the action whom they did not represent, or their counsel, consented that the decree complained of should be signed by the judge at the term of the court in Carteret county as of the term of the court in Onslow county; that the sale of the land was fair, and the price paid for it was reasonable and just; that the whole of the purchase money had been paid to the commissioner who sold the land ; that when the commissioner notified the assignee of the. purchaser of the land, that the note of the testator (Shackelford) was not satisfactory to the executrix, he paid the whole of the purchase money in cash, and the same was in the hands of the commissioner subject to the order of the court. These findings are conclusive. W e see no reason to disturb them. They preclude every semblance of ground for setting aside the decrees for fraud or surprise. Although in strictness, the commissioner ought to have received the whole of the purchase money before executing the deed, as the decree directed him to do, still as he at last received the money and holds it subject- to the further order of the court, *187 this must be treated as a substantial and sufficient compliance with the terms of the decree. He acted in good faith, and the appellant has suffered no detriment by his action. She will share in the fund just as she would have done, if the whole sum of money had been paid before the deed was executed. It seems that the commissioner believed that the note of the testator would serve the same purpose as cash in hand. In this, however, he was mistaken. But he corrected his mistake promptly, and this is sufficient. The court will not disapprove of, and set aside the acts of its officers when they honestly and in good faith make slight mistakes, that do not affect the substantial rights of parties interested. 3. There does not appear to be the slightest foundation for the motion for dower, even if it were germane, to this action. The plaintiff has not dissented from her late husband’s will; on the contrary, she qualified as executrix thereof and took under it as sole devisee and legatee. She is not entitled to have dower assigned to her. She took under the will such real estate as passed by it, and so much of it as does not éxceed the quantity to which she would be entitled by her right of dower under the statute, cannot be reached by creditors of the testator. The Code, § 2105. We are unable to discover any equity in her favor arising under the circumstances of this case, to have the first mortgage upon the land mentioned discharged out of the personal estate of the testator, to the end, she may have dower in the land embraced by the' mortgage. There was no ob-* ligation, equitable or otherwise, resting on the testator in his life-time, or upon his executrix after his death, to pay the first mortgage debt, Indeed,.the executrix could not do so in her own, interest as sole devisee and legatee, to the prejudice of creditors. The latter are entitled to have their debts paid first out of the personal estate, and these paid, she would take all the property left, both real and personal. *188 The husband was not bound in his life-time, nor is the executor of his will bound -in any way to provide land out of which his widow might have dower. Besides, it appears that the estate is insolvent. The testator had in his life-time purchased the equity of redemption in the land mortgaged to pay the first and second mortgage debts, but it has turned out that the land did not sell for a sufficient sum of money to pay the whole of the mortgage debts, and therefore the equity of redemption owned by the testator was of no value, and of course the widow could get no dower, nor money in lieu of dower in it. The mortgage debt could not, in any equitable view of it, as seems to be supposed, be treated as reality. It was of and simply belonged to the personal estate of the testator. It was like and on the samé footing as any other debt due the estate, except that it was secured by the mortgage. Besides, if in any possible view the plaintiff could be entitled to any equitable relief in respect to her claim, of dower, her motion comes too late. Her . late husband, in his life-time, joined in this action to sell the mortgaged land, and out of the proceeds of such sale pay the mortgage debts, and after his death she, as the executrix of his will, and sole devisee and legatee under it, became a party to the action, and joined in the prayer for the sale, and is concluded by the record. The court properl}' denied the motion in respect to dower. 4. .We concur in the opinion of the court below, that any •claim the plaintiff may have upon L. W. Humphrey as her agent in the purchase of the land, and like claim she may have upon the assignees of his bid for it, cannot be properly litigated ill this action. It is a cause of action, if it exists, apart, entirely distinct from, and foreign to the present one, or any purpose contemplated by it. No error. Affirmed.