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SMITH V. HUFFMAN.
Nancy Smith), to sell intestate's lands to pay debts. No answer was filed by Mrs. Smith. An order of sale was made and the two tracts in controversy were sold to William Vanhorn. The proceeding was in all respects regular except that upon the coming in of the report of sale, notice was issued to the defendants in said proceeding to show cause at the court house in Morganton on the 23rd of December, 1885, why the sale should not be confirmed. Copies of this notice were served on Waits Smith and wife Nancy Smith, on December 5th, 1885. In response to said notice the said Waits and Nancy Smith on December 22, 1885, filed an answer in which they alleged that as to Lots 2 and 5, being the lots in controversy in this case, "David Vanhorn did not die seized of the said two tracts, but had sold the same to the feme respondents for valuable consideration by deed duly probated and delivered and now recorded, long before his death. That the feme respondent, by virtue of said deed is owner in fee of said two tracts of land." On December 24th an order was made in the cause reciting as follows: "This cause coming on to be heard this day, by consent, and it appearing that the administrators of David Vanhorn have sold the first, second, third, fourth and fifth tracts of land described in the petition in manner and form as follows, to-wit. And it further appearing that notice was issued to all of the defendants except Waits Smith and wife, Nancy Smith, to show cause on the 23d day of December, 1885, why said sale should not be confirmed, and notice having issued to Waits Smith and wife, Nancy Smith, to show cause on the 26th day of December, 1885, why said sales should not be confirmed, the said last named defendants having filed an answer to said notice and said sales, from the "report of administrators," and the answer of said defendants appearing to be reasonable, and no sufficient cause being shown why said sales should not be confirmed: It is now, on motion of I. T.
SMITH V. HUFFMAN.
Avery, attorney for plaintiffs administrators, ordered, adjudged and decreed that said sales be in all respects confirmed." The order further directed the administrators to execute deeds to the purchasers.
This cause was heard before his Honor Judge Justice, upon a motion to restrain the defendants from cutting timber on the said tracts of land in controversy, on the 20th of January, 1903. His Honor made the following order: "I find from proofs by affidavit and deed offered by plaintiff, and the affidavits and copy of record and deeds offered on the part of the defendant, that the plaintiff has failed to show a prima facie title to the land in controversy, the plaintiffs being estopped by the record offered by defendant to claim title to said land against the defendants." His Honor proceeds to refuse the motion for an injunction and requires the defendants to execute a bond conditioned to pay plaintiffs such damages as they may recover in this action. The plaintiff appeals.
We are of the opinion that his Honor's ruling is correct. The petition alleges that David Vanhorn died seized of the land in controversy. Nancy Smith was a party to this petition and filed no answer. Judgment was thereupon rendered directing a sale of the land. This judgment was strictly in accordance with the allegations of the complaint and until vacated is conclusive upon the parties thereto of the facts alleged in the petition and found to be true. The court could not in this proceeding, inquire into or make any order affecting the integrity of the judgment. Syme v. Trice, 96 N. C., 243. There is certainly no irregularity in the record anterior to the final decree confirming the sale. It is true that the decree recites that the notice issued to Nancy Smith was returnable on the 26th day of December. Her answer is filed on the 22d and the order made on the 24th of December, 1885, confirming the sale, recites that it was "heard by con
SMITH V. HUFFMAN.
sent." This recital is conclusive on us that the time for hearing the motion for confirmation was consented to by all parties, and although it is adjudged that the answer of Nancy Smith is reasonable, it is expressly adjudged that "no sufficient cause being shown why said sale should not be confirmed," the order of confirmation is made. If it had been irregular to hear the order before the 26th of December, such irregularity could be cured by the consent of the parties, and the recital in the judgment that such consent had been given is conclusive in this action. Chambers v. Penland, 78 N. C., 53. It will be observed that the plaintiff declares upon a legal title, making no reference to the proceeding instituted by the administrator of David Vanhorn, for any irregularity or for infirmity in that record. If she desired to attack the record for fraud she could have specifically alleged such vitiating facts and asked to have the sale and proceeding set aside. This she has failed to do. If she complains of irregularities in the proceedings she can only take advantage thereof by a motion in the cause. These principles have been so thoroughly settled by numerous decisions of this court that it is not necessary to review the authorities. Morris v.
White, 96 N. C., 91. We concur with his Honor that upon the record before us the plaintiff is estopped from asserting title to the land in controversy. "A purchaser at a judicial sale will be protected if the sale was authorized by a judgment of a court having jurisdiction of the subject matter and the person, although the judgment may be impeached for irregularity. Dickens v. Long, 112 N. C., 311.
The plaintiff suggests that there is nothing in the record to identify any of the land therein mentioned as the tracts sued for, or to have put Mrs. Smith on notice that her lands were sought to be sold in that proceeding. The complaint describes the land in controversy and the defendant expressly claims title to the same land in the proceedings referred to.
His Honor heard the case upon this assumption, that these were the lands in controversy and we see nothing to suggest the contrary.
GROSS v. SMITH.
(Filed May 12, 1903.)
GIFTS-Delivery-Evidence-Declarations-Questions for Jury.
A gift of personal property is not complete without delivery, but declarations of an alleged donor that he had given certain property is competent evidence from which the jury may infer and find whether there was a delivery.
ACTION by Nannie Gross and others against John Smith, heard by Judge Francis D. Winston and a jury, at November (Special) Term, 1902, of the Superior Court of RUTHERFORD County.
The plaintiffs brought this action for the recovery of a cow which they allege to be in the possession of the defendant Smith. It appears that the cow was sold by the defendant, W. F. Snider, as administrator of J. B. Snider, and bought by John Smith his co-defendant. The feme plaintiff claims ownership of the cow by virtue of a parol gift from her father. In order to establish her title to the cow, she introduced evidence tending to prove that her father had frequently stated that the cow was not his but belonged to her, and that he had given it to her, and when the father was asked to sell it to other persons, he always replied that he could not do so, as it was not his cow but belonged to his daughter Nannie. The feme plaintiff was under age and lived with her father, and the cow was kept in her father's pasture during his life time. On several occasions, while the cow was in the pasture, he pointed her out and said that he
GROSS v. SMITH.
had given her to the feme plaintiff and that it was not his Cow. He further stated that he had given each of his children a cow, and that this cow was the one he had given to the feme plaintiff. After the death of J. B. Snider, the cow remained on his place, but in the possession of the feme plaintiff's husband. There was also evidence tending to show that the defendant W. F. Snider administrator of J. B. Snider before the sale to his co-defendant, had admitted that the cow belonged to the feme plaintiff, and L. H. Gross, the husband of the feme plaintiff, testified upon his examination that the feme plaintiff claimed the cow because her father had given the cow to her when she was under age and was living with him as a member of his family. There was no objection to
any of the testimony.
The defendants at the close of the testimony moved to dismiss the complaint or for judgment as in case of non-suit under the statute. The motion was overruled and the defendants excepted. No testimony was introduced by the defend
The court charged the jury in substance as follows: "That to constitute a gift of personal property, there must be a change of possession. If the plaintiff's father pointed out the cow and said to her 'that is your cow I give it to you' and then retained possession of the cow, it was not a gift and the plaintiff cannot recover. In order to constitute a valid parol gift of the cow, the jury must find that the father parted with the possession and control of the cow and let the possession and control pass to the feme plaintiff. If the plaintiff never had possession before the death of her father, no subsequent possession would complete the gift, but that the gift, to be effectual, must have been absolute when made, and must have been accompanied by a transfer of possession-the delivery being the essential element of the gift." The court further charged the jury that the burden was upon the plaintiff to