{
  "id": 2085553,
  "name": "DANIEL G. A. WARD et al. v. W. T. DORTCH et al.",
  "name_abbreviation": "Ward v. Dortch",
  "decision_date": "1873-06",
  "docket_number": "",
  "first_page": "277",
  "last_page": "279",
  "citations": [
    {
      "type": "official",
      "cite": "69 N.C. 277"
    }
  ],
  "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": [],
  "analysis": {
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    "simhash": "1:cb82f49c3295ede2",
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  "last_updated": "2023-07-14T20:27:51.762407+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "DANIEL G. A. WARD et al. v. W. T. DORTCH et al."
    ],
    "opinions": [
      {
        "text": "Settle, J.\nIn refusing the .plaintiff\u2019s motion to remove Dortch from the trusteeship, and to appoint some one else to sell the lands in his stead, we cannot see that his Honor committed any error for which he can be reviewed.\nNo facts are set forth, which of themselves, entitle the plaintiffs to have Dortch removed from the trusteeship created by the deceased, and as to his appointment by tho Court as commissioner to sell the lands, it was purely a matter of discretion in the Court either to continue or remove him.\nIn Stone v. Latham, 68 N. C. Rep. 421, it is said that a commissioner appointed by a Court to sell land, is but the finger of the Gourt, and may be appointed, controJed and removed by the Court in its discretion.\nBut the plaintiff says that the Court has .no power to extend the time of sale beyond the terms limited in the deed of trust.\nThis question does not arise, for upon inspection of the deed it will be seen to no express and definite terms are fixed as to the time of sale, but the power of sale is conferred upon Dortch alone in certain events, &c.\nHis report giving his reasons for not selling the land at the time appointed seems to have been satisfactory to the Court there, and we may add that .he appears to us to have acted with good judgment.\nUndoubtedly, if a trustee or commissioner refuses or neglects to sell land when it is his duty to .sell, a Court will remove him, but it should not do so without good cause. Should there be delay beyond that granted by hi\u00a7 Honor it would look in the absence of the most cogent reasojis, as if there was good ground for the plaintiff\u2019s motion.\nLet it be certified that there is no error.\nPer Curiam. Order affirmed.",
        "type": "majority",
        "author": "Settle, J."
      }
    ],
    "attorneys": [
      "Isler, for appellants :",
      "Smith & Srong, contra:"
    ],
    "corrections": "",
    "head_matter": "DANIEL G. A. WARD et al. v. W. T. DORTCH et al.\nThe removal of a trustee at the request of the cestui que trust, and the appointment of some other person to sell the lands conveyed in the deed, in which such trustee is appointed, is purely a matter of discretion for the Court below, and one which the Court should not do without good cause.\n(Stone v. Latham, 68 N. C. Rep. 44, cited and approved.)\nCivil action, tried before Clarke, J., at Spring Term, 1873, of the Superior Court of Wayne county, upon the following facts, constituting the \u201c case stated \u201d and sent to this Court.\nThis action is brought by the plaintiffs, who are cestui que trusts against the defendant, Dortch, the trustee in a certain deed of trust made b3r the other defendant, Geo. W. Collier, to said Dortch on the 1st da3r of February, 1867, for the purpose o'f compelling him, the trustee, to sell the land conveyed in said deed for plaintiff\u2019s benefit.\nAt the Special January Term, 1873, his Honor, Judge Tourgee, by consent of parties, made an order to sell the\u2019 land conve3red as aforesaid, and appointed the trustee as commissioner to make the sale. The sale w\u00e1s advertised, and on the day the land was offered for sale at public suction, \u25a0when \u00a718,000 was all that was bid for th,e same, and the commissioner considering that sum insufficient and under its value, withdrew it from sale and reported to the next term of the Court that there was no sale, and introduced affidavits tending to show that the land would by being sold in December next, bring at least \u00a730,000.\nIt was then moved on the part of the plaintiffs that the defendant,. Dortch, be removed from the trusteeship, and some one else appointed to sell the lands in his stead, which motion was refused on the ground that Dortch had no notice of such motion.\nPlaintiffs then moved that the commissioner' heretofore appointed be ordered to sell the lands on the terms expressed in the former order, and that he report the Bale at the next term of the Court. Motion likewise refused.\nHis Honor, then on motion of defendants, ordered that Win. T. Dortch (the defendant) sell the lands mentioned in the pleadings on the 1st Monday in December next, on the terms set forth in the decree heretofore made in this cause.\nFrom which order, plaintiffs appealed.\nIsler, for appellants :\n1. The Court has the power to remove a trustee without any formal notice. Stilley and wife v. Rice, 67 N. C. Rep. 175.\n2. The postponing the time of sale to some other, different from that expressed in the mortgage, is impairing the obligation of the contract. Branson v. Kinzie, 1 How. U. S. 311; Melraken v. Hayward, 2 How. U. S. 60S.\nSmith & Srong, contra:\nDortch was trustee and was directed as such to make the sale.\nThe Court had the right to prescribe the time of a sale made under its order, though disregarding the particulars of the deed, if the interests of outside parties entitled to the surplus require a donation in order to insure a sale for value. Bryant & Reed v. Scott.\nThe order to sell was made at a previous term and acquiesced in. No complaint can now be made nor appeal taken thereupon. The decree was by consent, and as to the point of ruling complained of the plaintiff, proposed a decree containing same terms."
  },
  "file_name": "0277-01",
  "first_page_order": 285,
  "last_page_order": 287
}