
    STRICKLAND v. STRICKLAND.
    (Filed October 1, 1901.)
    1. PARTIES —Creditors —Personal Representatives —Executors — Sale of Land to Malte Assets.
    
    Creditors will not be permitted to become parties plaintiff witb the personal representative in a proceeding to sell land to make assets
    2. JUDGMENT' — Irregular—Parties.
    Proceedings for sale of land to make assets, in which a creditor is erroneously allowed to make himself a party plaintiff, are not validated by the rendition of a consent judgment confirming the sale.
    3. JUDGMENTS' — Irregular■—Vacating—Motion in the Cause.
    
    An irregular judgment can be set aside by a motion in the cause if made within a reasonable time.
    ActioN by Mary J. Strickland, executrix of Allison Strickland, and N. B. Finch, intervenor, against A. A. Strickland and others, heirs-at-law of Allison Strickland, heard by Judge A. L. Coble, on motion, at Henderson, N. C., March 1, 1901. From a judgment as set out in the opinion, all the parties appealed.
    
      T. T. Hicks, and W. M. Person, for the petitioners.
    
      Jacob Battle, and P. S. Spruill, for the intervenor.
   Montgomery, J.

On the 29th of August, 1892, the Clerk o-f the Superior Court of Nash County, in a special proceeding begun by Mary J. Strickland, executrix of Allison Strickland, and also in her own right against the devisees and heirs-at-law of the testator (he dying partially intestate), for the purpose of selling certain real estate of the testator to make assets for tbe payment of bis debts, made a decree for a sale of a part of tbe land, to-wit, a tract of 84 acres, the same to be sold by tbe petitioner, a commissioner appointed by tbe Court. In February, 1895, an order was made, on tbe motion of a creditor,' N. B. Finch, that tbe plaintiff and defendants appear before tbe Court (tbe Clerk) on tbe 2d uf March following and “show cause why some other commissioner shall not be appointed and ordered to make sale of all tbe real estate aforesaid for tbe purpose of paying said indebtedness and costs.”

On tbe last-mentioned day, notice of tbe order having been served, tbe Clerk, on motion of N. B. Finch, “relieved tbe former commissioner, Mary J. Strickland, of tbe duty heretofore imposed on her as commissioner,” and appointed B. H. Sorsby commissioner in her place to sell tbe land; and Sorsby was ordered to sell not only tbe 84-acre tract, but to sell tbe whole of tbe real estate of tbe testator, in case tbe proceeds from tbe salé of tbe 84-acre tract should not be sufficient to pay tbe debts.

On tbe same day, on motion of N. B. Finch, additional parties (infant children who were interested) were ordered to be made, and Finch was' allowed to intervene in tbe action and required to file a formal petition in tbe cause, all tbe parties, infants and adults, plaintiffs and defendants, being allowed until tbe 4th day of May to file an answer to tbe petition.

Tbe petition was filed by Finch. In it be alleged tbe death of tbe testator, tbe probate of tbe will, tbe former order appointing Mary J. Strickland commissioner to sell tbe land, and her failure to do so, tbe debt due to him from tbe estate, and prayed for an order of sale of all tbe real estate of the testator “in order that said indebtedness may be paid and tbe estate closed.” Tbe infants, through their guardian ad litem, filed an answer, in which it was said that tbe guardian bad “looked into the matters alleged in said petition and could see no defense to the same on behalf of the said wards, and he therefore admits each allegation of said petition, and asked the Court to protect the interest of his said wards.” The other parties did not answer. Sorsby was ordered to sell, the sale took place and was confirmed, and Pinch became the purchaser of the 84-acre tract at $75, and of the other real estate (352 acres) at $377.64. The decree of confirmation was a consent one, that is, it was signed by all the parties h> the proceeding, and was declared to be a final decree. The following is a part of the decree: “It is now, on motion of the petitioner, and with the consent of the other parties interested, ordered, adjudged and decreed that the said widow, Mary J. Strickland, shall hold during her lifetime, in lieu of dower, the Susan A. C. Sutton tract, or Lot No. 5, containing 50 acres, more or less, together with a portion of the 84-acre tract adjacent to Lot No. 5, to be cut off by an east and west line, so as to make an area of 15 acres to be added to the 50-acre lot.” The commissioner was ordered to malte a fee-simple deed to the purchaser to the lands bought by him other than the 65 acres, and, as to that, ,he should convey the reversion in fee to the purchaser.

On December 19, 1900, a motion was heard by the Olerk in the said special proceeding to set aside 'all judgments which had been rendered therein. The motion was at the instance of the parties to' the special proceeding, and directed to N. B. Pinch — notice of which had been properly served on him. On the 28th of January following, the Olerk found the facts and rendered judgment thereon in law. The parties who made the motion filed numerous exceptions, both to the Clerk’s finding of'fact and of law, and appealed to the Superior Court in term. Upon the hearing of the matter by his Honor, and judgment being rendered, the plaintiff and defendants in the special proceeding, and also N. B. Finch, filed exceptions and appealed to this Court.

APPEAL BY MARY J. STRICKLAND AND OTHERS.

From our view of the case, it is necessary to consider only one of the exceptions of the movers. That exception was to the ruling of his Honor that the orders and decrees made in the special proceeding after and including the one allowing N. B. Finch, the creditor, to intervene, were valid and binding on the movers other than. Mary J. Strickland. That ruling of his Honor was erroneous, unless the signing of the judgment of confirmation of the sale of date July 22, 1895, made the proceedings and decree legal and proper. In Dickey v. Dickey, 118 N. C., 956, the facts were like those in the case before us, except that the decree was not a final one, and the decree was not signed by the parties. In that case the Court said: “These proceedings, from the time of their commencement at the issuing of the notice by Johnson (creditor) before the Clerk to the last order of the Court, can not be sustained. They are altogether irregular. Creditors can not be permitted to become parties plaintiff with the personal representative in proceedings of this kind. (Petitions by personal representatives to make real estate assets.) All sorts of confusion and delay might and would be the result thereof. The representative might be embarrassed in every step he took to close up his administration.” That decision we still think a correct declaration of the law. Probably it might need some modification in a case where the purchaser of the land might be a stranger. Does the fact, then, that the judgment was a correct one affect the ruling in Dickey v. Dickey, su-pra f We think it does not. This Court would not and could not affirm a judgment by consent in a case where the Superior Court had no jurisdiction of the subject-matter in dispute; neither will it do so where, although the Court below might have jurisdiction, the evils that might be reasonably apprehended are patent, and where the proceedings are violative of a sound legal policy and of all rules of practice.

In the case before us, one creditor of a decedent’s estate intervenes in a proceeding, such as the law furnishes to the personal representative alone, completely sets aside the personal representative, is the author of every motion, and the beneficiary of every decree made in the cause, and finally concludes the matter by a decree which makes him the owner of more than 400 acres of land for the price of less than $500. It is true that his Honor found as a fact that “from the affidavits before the Court,” the land brought a fair price. It is also true that in 1891, 1892, 1893 and in 1894, the land was listed at $4.50 per acre, and at the time of the decree for its sale, at $5.00 per acre. Administration of the estates of decedents must be made through the personal representative. A creditor or creditors can not be allowed to displace the personal representative and take charge of the administration. It is not a question of whether a wrong has been or may be done in a particular case, but it is a question as to whether the personal representative shall administer, or a creditor. It is unnecessary to discuss the ruling of his Honor as to the effect of the decree on Mary J. Strickland, for, from what we have said, the decree as to all will be set aside, and for the reasons given.

We have not failed to notice the other question which was the subject of the appeal on the part of these appellants— the alleged appearance of counsel in the original proceeding —but a consideration of the same is rendered unnecessary by our conclusion on the matter discussed in the appeal.

Error.

APPEAL OP N. B. PINCH.

Tbe counsel for N. B. Eincb insisted in bis argument bere tbat bis Honor should have held tbat tbe consent decree of July 22, 1895, could not be set aside as to Mary J. Strickland in tbe present proceeding — a motion in tbe original cause — and tbat her remedy, if any, was by another and an independent action.

We think bis Honor was not in error on tbat point. An irregular judgment can be set aside, within a reasonable time, by a motion in tbe cause. Harrison v. Hargrove, 120 N. C., 96; Morehead Banking Co. v. Duke, 121 N. C., 110; Everett v. Reynolds, 114 N. C., 366.

It is not necessary to consider tbe other exception of N. B. Eincb, for, in tbe other appeal, we have said tbat tbe decrees in tbe special proceeding should be set aside as to all tbe parties, and tbat decision carries with it tbe exceptions of Eincb, except tbe one just above discussed, and as to tbat we have said there is no error.

No Error.  