{ "id": 8622954, "name": "LYDE LASSITER BAKER, MARY ALICE NORVILLE and WILLIAM EARL LASSITER v. TRAVIS D. MURPHREY", "name_abbreviation": "Baker v. Murphrey", "decision_date": "1959-05-20", "docket_number": "", "first_page": "346", "last_page": "351", "citations": [ { "type": "official", "cite": "250 N.C. 346" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "197 S.E. 132", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "213 N.C. 598", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629579 ], "pin_cites": [ { "page": "601" } ], "opinion_index": 0, "case_paths": [ "/nc/213/0598-01" ] }, { "cite": "4 S.E. 2d 525", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "216 N.C. 211", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8596452 ], "pin_cites": [ { "page": "215" } ], "opinion_index": 0, "case_paths": [ "/nc/216/0211-01" ] }, { "cite": "80 N.C. 34", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8684316 ], "opinion_index": 0, "case_paths": [ "/nc/80/0034-01" ] }, { "cite": "33 N.E. 413", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "144 Ill. 413", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3078358 ], "opinion_index": 0, "case_paths": [ "/ill/144/0413-01" ] }, { "cite": "119 A.L.R. 809", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "92 S.E. 493", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "173 N.C. 591", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271170 ], "opinion_index": 0, "case_paths": [ "/nc/173/0591-01" ] }, { "cite": "119 A.L.R. 807", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "56 S.E. 2d 643", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "231 N.C. 297", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629391 ], "opinion_index": 0, "case_paths": [ "/nc/231/0297-01" ] }, { "cite": "16 S.E. 2d 662", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "220 N.C. 120", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11299604 ], "pin_cites": [ { "page": "125" } ], "opinion_index": 0, "case_paths": [ "/nc/220/0120-01" ] }, { "cite": "197 S.E. 129", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "213 N.C. 657", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630026 ], "opinion_index": 0, "case_paths": [ "/nc/213/0657-01" ] }, { "cite": "25 S.E. 705", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "119 N.C. 282", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654810 ], "pin_cites": [ { "page": "285" } ], "opinion_index": 0, "case_paths": [ "/nc/119/0282-01" ] }, { "cite": "2 S.E. 159", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "96 N.C. 327", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650138 ], "opinion_index": 0, "case_paths": [ "/nc/96/0327-01" ] }, { "cite": "196 S.E. 329", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "213 N.C. 351", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628031 ], "pin_cites": [ { "page": "353" } ], "opinion_index": 0, "case_paths": [ "/nc/213/0351-01" ] }, { "cite": "80 S.E. 2d 369", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "239 N.C. 554", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627829 ], "pin_cites": [ { "page": "558" } ], "opinion_index": 0, "case_paths": [ "/nc/239/0554-01" ] } ], "analysis": { "cardinality": 708, "char_count": 14069, "ocr_confidence": 0.464, "pagerank": { "raw": 1.6453505663303367e-07, "percentile": 0.6917745011388695 }, "sha256": "1ff0c13e9c837195c636e26c63110fbe7dfadb5d310623438882f29171c7d4bc", "simhash": "1:bcaae6521e4ca883", "word_count": 2353 }, "last_updated": "2023-07-14T15:44:40.326881+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "LYDE LASSITER BAKER, MARY ALICE NORVILLE and WILLIAM EARL LASSITER v. TRAVIS D. MURPHREY." ], "opinions": [ { "text": "Bobbitt, J.\nIt appears that Eliza J. Murphrey acknowledged the execution of her deed of January 7, 1928, to John J. Murphrey before \u201cH. J. Brown, Deputy C.S.C.,\u201d whose certificate is in due form and includes the finding required by CS 2515, which, .as amended, is now G.S. 52-12. Defendant\u2019s contention that a deputy clerk had no \u25a0authority to make such finding is without merit. CS 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. CS 3293, now G.S. 47-1, expressly authorized a deputy clerk of superior court to take such acknowledgment.\nAs to the 22%-acre tract, plaintiffs\u2019 contention that the decree of confirmation and deed, in the foreclosure action, are void as to them., is well taken.\nUpon 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 \u201cin the place of their ancestor.\u201d Fraser v. Bean, 96 N.C. 327, 2 S.E. 159. 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; Wilmington v. Merrick 231 N.C. 297, 56 S.E. 2d 643; McIntosh, N. C. Practice and Procedure, \u00a7 233; 37 Am. Jur., Mortgages \u00a7 1129; 59 C.J.S., Mortgages \u00a7 627(e); Annotation: 119 A.L.R. 807 (As to whether the intestate\u2019s personal representative is a necessary party, see Geitner v. Jones, 173 N.C. 591, 92 S.E. 493, and oases discussed therein.)\nIt has been held that the heirs are indispensable parties when the ancestor diies during the pendency of the action. 37 Am. Jur., Mortgages \u00a7 1129; 59 C.J.S., Mortgages \u00a7 631; 119 A.L.R. 809.\nDefendant contends: \u201cThe death of a mortgagor after the decree of foreclosure, and before the sale thereunder, does not prevent such sale.\u201d 37 Am. Jur., Mortgages \u00a7 1147. This is true, but beside the point. In Holden v. Dunn, 144 Ill. 413, 33 N.E. 413, cited in support of -the quoted text, after the decree of foreclosure, but before the sale thereunder, \u201cnotices of the decree were, pursuant to the statute, served upon the heirs of John W. Dunn and upon the .administratrix of his estate.\u201d As to procedure on death of a party, see G.S. 1-75.\nIf 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 22%-acre tract by commissioners, was an interlocutory order. As stated by Smith, C. J., in Mebane v. Mebane, 80 N.C. 34: \u201cThe 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.\u201d In 'an 'action to foreclose a mortgage, \u201cconfirmation is essential to the consummation of the sale of the lands by the commissioner appointed and acting under the order of the court.\u201d Beaufort County v. Bishop, 216 N.C. 211, 215, 4 S.E. 2d 525, citing many prior cases.\nPlaintiffs, 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\u2019 interest in said 22%-acre tract, was without jurisdiction to decree confirmation. As to plaintiffs\u2019 interest, the decree of confirmation was void >and the commissioners\u2019 deed to defendant did not convey title. Therefore, nothing else appearing, plaintiffs now own an undivided one-sixth interest in the 22%-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\u2019 on October 20, 1941, should be confirmed. See Bank v. Stone, 213 N.C. 598, 601, 197 S.E. 132, and cases cited.\nPlaintiffs contend, alternatively, that, if the decree of confirmation >and the commissioners\u2019 deed are held valid, defendant, by reason of his status as administrator, acquired land holds title to said 22%-acre tract -as trustee for the heirs. However, having held the decree 'and deed void as to plaintiffs\u2019 interest, we do not reach this question.\nThe judgment of involuntary nonsuit dismissed plaintiffs\u2019 action in its entirety without referring specifically either to the 22%-acre tract or to the 1%-acre tract. It is noted that plaintiffs\u2019 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 l^-acre tract, i.e., that defendant acquired and holds title thereto, in respect of plaintiffs\u2019 interest, 'as trustee for plaintiffs, subject to 'his right to reimbursement. The facts relating thereto may be more fully developed at the next hearing.\nReversed.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "Lewis & Rouse for plaintiffs, appellants.", "I. Joseph Horton, K. A. Pittman and J. Faison Thomson & Son for defendant, appellee." ], "corrections": "", "head_matter": "LYDE LASSITER BAKER, MARY ALICE NORVILLE and WILLIAM EARL LASSITER v. TRAVIS D. MURPHREY.\n(Filed 20 May, 1959.)\n1. Husband and Wife \u00a7 5\u2014\nA deputy clerk has authority to take the certificate o-f a married woman in a conveyance by her to her husband. G.S. 52-12, G.S. 47-1.\n2. Mortgages \u00a7 31 g\u2014\nA decree for the sale of lands under foreclosure of a mortgage or deed of trust is an interlocutory order and the bid at the sale is but a proposition to buy, and confirmation is essential to the consummation. of the sale and the transfer of title.\n3. Mortgages \u00a7 31b: Executors and Administrators \u00a7 20\u2014\nWhere the mortgagor dies intestate after decree of foreclosure but prior to confirmation, the mortgagor\u2019s heirs at law, to whom the land descends subject to be sold to make assets to pay debts, are necessary \u00a1panties and are entitled to be bear\u2019d as to whether the. sale by the commissioners should be confirmed, and as to heirs who are not made parties 'the court is without jurisdiction to decree confirmation, and such heirs are entitled to set aside .the foreclosure and to an adjudication that they own their proportionate part of the lands subject to outstanding liens.\nAppeal by plaintiffs from Thompson, Special J., October 1958, (A) Term, of GREENE.\nCivil action to have plaintiffs declared the owners of an undivided one-sixth interest in two tracts of land in Greene County containing 22% acres and 1%. acres, respectively, and for an accounting of rents and profits from 1941 to date.\nJohn J. Murphrey died September 20, 1943, intestate, survived by his widiow, Eliza Murphrey, and by the following heirs at law: Five children, Travis D. Murphrey (defendant herein), Addie M. May, Willie Murphrey, Annie Murphrey Rouse, and Mary Murphrey Linton, and four grandchildren, the children of Maybelle Murphrey Las-siter Gay, a daughter who predeceased John J. Murphrey, namely, Joseph Hugh Lassiter, Mary Alice Norville, Lyde Lassiter Baker, and William Earl Lassiter.\nPlaintiffs assert title as heirs 'at law of John J. Murphrey, their grandfather, and of Joseph Hugh Lassiter, their brother, who died subsequent to the death of John J. Murphrey.\nIn the documents referred to below, the spelling is \u201cMurphy.\u201d For convenience, we adopt the spelling used in the pleadings, to wit, \u201cMurphrey.\u201d\nOn September 26, 1941, T. D. Murphrey, defendant herein, qualified as administrator of the estate of John J. Murphrey, and served as such administrator until October 1, 1942, on which date he filed his final account with the clerk of 'superior court. His final account as administrator shows total receipts (all on September 29, 1941) of $306.32, \u201crents from sale of tobacco,\u201d 'and disbursement thereof (on or prior to November 30, 1941) in payment of crop liens, administration expenses and the balance of $6.35 \u201cPaid to Mrs. J. J. Murphy, Year\u2019s support.\u201d\nPlaintiffs offered the record of a deed dated January 7, 1928, duly recorded, by which Eliza J. Murphrey, \u201cin consideration of One Dollar and the assumption of Mortgage indebtedness,\u201d purported to convey the two tracts to John J. Murphrey in fee simple. After full warranties, these words appear: \u201cExcept Mortgage held by Ben Albritton, and Lang & Tyson.\u201d\nPlaintiffs offered the judgment roll in a civil action entitled \u201cFarm-ville Oil and Fertilizer Company v. John J. Murphy, Eliza Murphy, Richard Grimsley, John Hill Paylor, Trustee, J. H. Harris, James H. Harper, J. T. Taylor, and T. M. Dail, partners, trading as J. T. Taylor & Company,\u201d relating to the 221/2-acre tract.\nThis was an action to foreclose a mortgage dated January 14, 1928, executed and delivered by John J. Murphrey and wife, Eliza Mur-phrey, as security for the payment of their $1,106.00 promissory note to Tyson-Lang Company, then owned by the plaintiff. The defendants, other than John J. Murphrey and Eliza Murphrey, were joined because of their claims under other mortgages. Grimsley, .the only defendant who answered, asserted that he owned a $450.00 mortgage note, executed and delivered by John J. Murphrey and wife, Eliza Murphrey, to B. E. Albritton, and that this mortgage was a first lien on the 22%-aore tract. Judgment dated June 27, 1941, entered at June Term, 1941, adjudged that plaintiff recover of John J. Murphrey and Eliza Murphrey the sum of $1,106.00 with interest thereon at 6% per annum from January 1, 1931, together with costs; and, in said judgment, commissioners were appointed to sell the 22%-acre tract and disburse the proceeds as provided therein.\nAt the commissioners\u2019 sale on October 20, 1941, J. H. Harris, a defendant in said action, was the last and highest bidder at $2,500.00. He assigned his bid to T. D. Murphrey. The sale was confirmed November 12, 1941, by decree of the resident superior court judge, which ordered that the commissioners convey the property to T. D. Mur-phrey upon his payment of said purchase price. The decree of confirmation directed that the commissioners disburse the $2,500.00 as follows: First, to the payment of the costs of \u00a1the action, including an allowance of $150.001 to the commissioners; second, to the payment of \u25a0taxes; third, to the payment of the mortgage indebtedness due Grims-ley; and fourth, \u201cthe residue to be paid to the Farmville Oil and Fertilizer Company on Judgment entered \u2019at June Tern, 1941.\u201d By deed dated November 12, 1941, the 'commissioners purported to convey to T. D. Murphrey in fee simple the said 22%-acre tract. The commissioners\u2019 final report shows their receipt of $2,500.00 from T. D. Murphrey and their disbursement thereof as provided in the decree of confirmation. T. D. Murphrey is Travis D. Murphrey, defendant herein.\nJohn J. Murphrey and Eliza Murphrey were duly served with summons in said foreclosure action. Neither filed 'answer. The said judgment was entered at June Term, 1941. The commissioner\u2019s sale, the report thereof, decree of confirmation, etc., 'occurred after September 20, 1941, the date of John J. Murphrey\u2019s death.\nThe plaintiffs were not made parties to said foreclosure action and none was represented therein by a guardian ad litem or any other legal representative. When John J. Murphrey died, the ages of plaintiffs were as follows. Lyde Lassiter Baker was 18, William Earl Lassi-ter was 13, and Mary Alice Norville was 4. (Note: The other heirs at law of John J. Murphrey were not made parties to saidi foreclosure action and are not parties to this action.)\nPlaintiffs offered the following evidence relating specifically to the 1%-aere tract, which was not involved in said foreclosure action, viz.: (1) Defendant\u2019s admission that John J. Murphrey and wife, Eliza Murphrey, by mortgage dated February 22, 1939, and duly recorded, -had conveyed said l^-\u2019^cre tract to Richardi Grinnsley /as security for an indebtedness of $150.00. (2) The record of a deed from Richard Grimsley, Mortgagee, to defendant, purporting to convey saidi 1%-acre tract pursuant to foreclosure sale on December 19, 1941, under said mortgage of February 22, 1939, at which defendant became the last and highest bidder at $150.00. This deed contains full recitals as to default, advertisement, failure to receive upset bid, payment of purchase price by defendant, etc. There was no evidence as to the fair market value of the 1%-acre tract.\nThe only testimony was that of Mrs. Lyde Lassiter Baker, one of the plaintiffs. She testified that her grandparents, John J. Mur-phrey and wife, Eliza Murphrey, lived on the \u201cbomeplace\u201d until John J. Murphrey died; and 'that Eliza Murphrey continued to live there until January 1, 1956, when she was taken to \u00a1the hospital, during which time Willie Murphrey, one of her sons, resided with her. There was no testimony as to whether the 22%-acre tract, or the 1%-acre tract, or 'both, constituted the \u201cbomeplace.\u201d\nPlaintiffs\u2019 first 'cause of action relates to both of said tracts. Plaintiffs alleged -a second cause of action, .purporting to relate to a separate 5-acre .tract; but plaintiffs\u2019 statement of case on appeal sets forth that \u201cDuring the course of the trial it became apparent that the 5-acre tract was a part of the 22%-acre tract\u201d and that \u201cPlaintiffs took \u00a1a voluntary nonsuit as to their second cause of action.\u201d At the close of plaintiffs\u2019 evidence, the court, allowing defendant\u2019s motion therefor, entered judgment of involuntary nonsuit. Plaintiffs excepted and .appealed.\nLewis & Rouse for plaintiffs, appellants.\nI. Joseph Horton, K. A. Pittman and J. Faison Thomson & Son for defendant, appellee." }, "file_name": "0346-01", "first_page_order": 386, "last_page_order": 391 }