James v. . Withers

Citations

• 19 S.E. 367
• 114 N.C. 474

Syllabus

<p>Injunction — Sale of Land Under Deed of Trust — Rights of Heirs — Administrator—Injunction Bond — Infant Parties.</p> <p>1. Where J. conveyed real estate and personalty to G., taking in return the latter’s bond secured by a deed of trust on the land, and after the death of'J., who left no estate excepting the bond, G. recon-veyed the property to the heirs and next of kin of J. in consideration of the surrender of his bond, and a public administrator, having qualified as administrator of J., requested the trustee to sell the property under the deed of trust and the heirs of ,T. brought suit to enjoin the sale, alleging that there were no debts, the sale will be enjoined until by a reference it may be ascertained whether there are any debts due by the intestate’s estate and the amount thereof, if any, as well as the charges of administration, and an opportunity given to the plaintiffs to pay the same to the administrator; whereupon, in case of such payment, a decree may be had for the cancellation of the deed of trust and a division of the property among the owners, and in ease of default in such payment the injunction may be dissolved and the trustee directed to sell.</p> <p>2. In such case, if it should appear from the reference that there are no debts duo by the intestate’s estate, there should be a decree directing the cancellation of the deed-of trust upon the payment of the administration charges only, for the trustee will be entitled to no commission if there be no sale.</p> <p>3. The requirement of section 341 of The Code, that a plaintiff shall give an undertaking before an injunction can be granted, is mandatory.</p> <p>4. The simple naming of “the children of Alexander James'and the children of Calvin James” as plaintiffs does not have the effect to make them parties as required under the rules of practice in the Superior Courts (17 and 16 Clark’s Code. p. 724), which point out the proper mode by which minors may sue or answer.</p>