Baker v. Murphrey

108 S.E.2d 644 (1959)

250 N.C. 346

Lyde Lassiter BAKER, Mary Alice Norville and William Earl Lassiter, v. Travis D. MURPHREY.

No. 308.

Supreme Court of North Carolina.

May 20, 1959.

*647 Lewis & Rouse, Farmville, for plaintiffs, appellants.

I. Joseph Horton, K. A. Pittman, Snow Hill, and J. Faison Thomson & Son, Goldsboro, for defendant, appellee.

BOBBITT, Justice.

It appears that Eliza J. Murphrey acknowledged the execution of her deed of January 7, 1928, to John J. Murphrey before "H. J. Brown, Deputy C.S.C," whose certificate is in due form and includes the finding required by C.S. § 2515, which as amended, is now G.S. § 52-12. Defendant's contention that a deputy clerk had no authority to make such finding is without merit. C.S. § 2515 contemplated that the finding that the contract was not unreasonable or injurious to the married woman would be made by the officer before whom she was separately examined as to her execution of the deed. C.S. § 3293, now G.S. § 47-1, expressly authorized a deputy clerk of superior court to take such acknowledgment.

As to the 22½-acre tract, plaintiffs' contention that the decree of confirmation and deed, in the foreclosure action, are void as to them, is well taken.

*648 Upon the death of an intestate, his real property descends to his heirs, subject to be sold, if necessary, to make assets to pay his debts. Alexander v. Galloway, 239 N.C. 554, 558, 80 S.E.2d 369; Linker v. Linker, 213 N.C. 351, 353, 196 S.E. 329. As to mortgaged property, the heirs stand "in the place of their ancestor." Fraser v. Bean, 96 N.C. 327, 2 S.E. 159, 160. As owners of the equity of redemption, they are necessary parties to an action for foreclosure of the mortgage. Fraser v. Bean, supra; Chadbourn v. Johnston, 119 N.C. 282, 285, 25 S.E. 705; Hinkle v. Walker, 213 N.C. 657, 197 S.E. 129; Riddick v. Davis, 220 N.C. 120, 125, 16 S.E.2d 662; City of Wilmington v. Merrick, 231 N.C. 297, 56 S.E.2d 643; McIntosh, N.C. Practice and Procedure, § 233; 37 Am.Jur., Mortgages § 1129; 59 C.J.S. Mortgages § 627e; Annotation: 119 A.L.R. 807. (As to whether the intestate's personal representative is a necessary party, see Geitner v. Jones, 173 N.C. 591, 92 S.E. 493, and cases discussed therein.)

It has been held that the heirs are indispensable parties when the ancestor dies during the pendency of the action. 37 Am. Jur., Mortages § 1129; 59 C.J.S. Mortgages § 631; 119 A.L.R. 809.

Defendant contends: "The death of a mortgagor after the decree of foreclosure, and before the sale thereunder, does not prevent such sale." 37 Am.Jur., Mortgages § 1147. This is true, but beside the point. In Holden v. Dunn, 144 Ill. 413, 33 N.E. 413, 414, 19 L.R.A. 481, cited in support of the quoted text, after the decree of foreclosure, but before the sale thereunder, "notices of the decree were, pursuant to the statute, served upon the heirs of John W. Dunn and upon the administratrix of his estate." As to procedure on death of a party, see G.S. § 1-75.

If plaintiffs, upon the death of John J. Murphrey, had been made parties to said foreclosure, they would have succeeded to his rights and status therein. Plaintiffs do not attack the validity of the judgment entered at June Term, 1941. But that judgment, in respect of its provisions for the sale of the 22½-acre tract by commissioners, was an interlocutory order. As stated by Smith, C. J., in Mebane v. Mebane, 80 N.C. 34: "The commissioner acts as the agent of the Court, and must report to it all his doings in execution of its order. The bid is but a proposition to buy, and until accepted and sanctioned by the Court, confers no right whatever upon the purchaser. The sale is consummated when that sanction is given and an order for title made and executed." In an action to foreclose a mortgage, "confirmation is essential to the consummation of the sale of the lands by the commissioner appointed and acting under the order of the court." Beaufort County v. Bishop, 216 N.C. 211, 215, 4 S.E.2d 525, 527, citing many prior cases.

Plaintiffs, as parties in interest, were entitled to be heard as to whether the sale by the commissioners should be confirmed. Since they were not parties to the foreclosure action, the court, as to plaintiffs' interest in said 22½-acre tract, was without jurisdiction to decree confirmation. As to plaintiffs' interest, the decree of confirmation was void and the commissioners' deed to defendant did not convey title. Therefore, nothing else appearing, plaintiffs now own an undivided one-sixth interest in the 22½-acre tract, subject to said judgment and such liens as may be outstanding thereon. If and when plaintiffs intervene in such foreclosure action or are made parties thereto, the court may then resolve the question as to whether the sale by commissioners on October 20, 1941, should be confirmed. See First Nat. Bank of Thomasville v. Stone, 213 N.C. 598, 601, 197 S.E. 132, and cases cited.

Plaintiffs contend, alternatively, that, if the decree of confirmation and the commissioners' deed are held valid, defendant, by reason of his status as administrator, acquired and holds title to said 22½-acre tract as trustee for the heirs. However, *649 having held the decree and deed void as to plaintiffs' interest, we do not reach this question.

The judgment of involuntary nonsuit dismissed plaintiffs' action in its entirety without referring specifically either to the 22½-acre tract or to the 1¼-acre tract. It is noted that plaintiffs' allegations as to both tracts were compounded in a single cause of action. In reversing the judgment of involuntary nonsuit, we express no opinion as to whether the meager evidence relating thereto was sufficient to make out a prima facie case as to the 1¼-acre tract, i. e., that defendant acquired and holds title thereto, in respect of plaintiffs' interest, as trustee for plaintiffs, subject to his right to reimbursement. The facts relating thereto may be more fully developed at the next hearing.

Reversed