Coffin v. . Cook

Citations

• 11 S.E. 371
• 106 N.C. 376

Syllabus

<p>Action to Recover Land — ■ Special Proceeding — Guardian ad litem — Service on Infants — Irregularities—Motion.</p> <p>1. In an action for the recovery of the possession of land, defendant, in support of his title, offered in evidence a special proceeding and order for sale of land for assets and deed thereunder, to which plaintiff objected because it did not appear that the guardian ad litem appointed for the feme plaintiff, who was a party to the proceeding, was served with summons, or appeai’ed or filed any answer. Summons was served upon the infant according to law: Held, there was not such irregularities as made the proceeding void.</p> <p>2. At most, such proceedings were only voidable, and could not be attacked collaterally except for fraud or by motion in the cause when made in apt time.</p> <p>3. The fact that the purchase-money was not paid until three months after sale, and that deed was not made directly to the bidder in accordance with the order of sale, but to a third party, who advanced the money for him, were not such as the plaintiff (the petitioner) could complain of, after the lapse of years, even though it might have been the duty of the Court, if these facts had' thus appeared, to have set aside the sale.</p> <p>4. When the executor, in this case, exercised a power conferred by an order of the Court in the execution of the deed, but failed to recite therein the source of his authority, the implication is that he exercised the power so conferred.</p>