(123 N. C. 651) MCPEETERS et al. v. BLANKENSHIP. (Supreme Court of North Carolina. Dec. 23, 1898.) BRIDGES-IN TWO COUNTIES-AUTHORITY TO CONSTRUCT-COSTS-COUNTY WARRANTS -NEGOTIABILITY. 1. Code, 2014, giving county commissioners power "to appoint where bridges shall be made," is to be construed in connection with section 707, subsec. 10, as amended by Laws 1895, c. 135, § 2, providing that county commissioners may construct bridges in the county, and, when a bridge is necessary over a stream which divides one county from another, the commissioners of each county shall join in its construction, and the charge thereof shall be divided be tween the counties; and therefore the statutes do not authorize county commissioners to build a bridge over a boundary stream without the joining of the commissioners of the other county, or at the sole expense of the first county, though the refusal to join is for the reason that the bridge is of no benefit to the adjoining county, because it accommodates only a small strip of its territory. 2. County warrants are not negotiable, in the sense of the law merchant, so as to protect purchasers for value and without notice of defenses. Appeal from superior court, Yancey county; Starbuck, Judge. Action by C. L. McPeeters and others against M. H. Blankenship. There was a judgment for defendant, and plaintiffs appeal. Reversed. J. M. Gudger, Jr., for appellants. Hudgins & Watson, for appellee. CLARK, J. Code, § 707, subsec. 10, amended by Laws 1895, c. 135, § 2 (which strikes out the proviso), gives county commissioners power "to construct and repair bridges in the county and to raise by tax the money necessary therefor; and when a bridge is necessary over a stream which divides one county from another, the board of commissioners of each county shall join in the construction or repairing of such bridge, and the charge thereof shall be defrayed by the counties concerned in proportion to the number of taxable polls in each." Code, § 2014, giving the county commissioners power "to appoint where bridges shall be made," is to be construed in connection with section 707, subsec. 10, and is not in conflict with it. The commissioners of Yancey county deemed that a bridge was necessary over the Toe (or Estatoe) river at the point where the public road from Burnsville, the county seat, to Johnson City, Tenn., crosses it, as that road is much used by citizens of the county, and rises of water in the river are not infrequent. The river at that place is the dividing line between Yancey and Mitchell counties, but as the road in question passes through a very narrow strip of Mitchell county, lying between the river and the Tennessee line, the commissioners of the latter county refused the application of the commissioners of Yancey to join in building the bridge, upon the ground that the interest of Mitchell county in having a bridge at that point was too slight The to justify them in sharing the expense. Thereupon the commissioners of Yancey as sumed the entire expense, and caused an iron bridge to be constructed, at a cost of $4,000, payable in five annual installments. bridge has been completed, and has been accepted by the commissioners, and five warrants for $800 issued to the contractor, the first of which falls due this year. This is an action by sundry taxpayers to restrain the county treasurer from paying the warrants, on the ground that the erection of the bridge was ultra vires, and the warrants are not a valid indebtedness of the county. It would have been more seemly and just if some taxpayer had enjoined the erection of the bridge in the beginning, but there is no estoppel in matters of this kind. The county commissioners have only such powers as are conferred by statute, or plainly incident thereto; and, in this matter of building bridges over a stream dividing one county from another, their powers are plainly prescribed and restricted. The commissioners of Yancey had no power to build the bridge across such boundary stream, and throw the entire expense upon Yancey county, nor to build it at all, in the absence of the joining of the commissioners of Mitchell, in which county half of the bridge is situated. It was held in Greenleaf v. Board (at this term) 31 S. E. 264, that the county commissioners could not accept a bridge as a gift to the county, to be maintained at its expense, when at one end of the bridge the road was a pri vate road, and not under county control Clearly, therefore, the county commissioners cannot build a bridge at county expense when half of it will be in another county, and the road at the other end will not be under their control, except in the manner prescribed by statute, unless a special statute is procured to authorize it. If the bridge is a necessity to Mitchell county also, and the refusal of its commissioners is arbitrary, possibly a mandamus might have issued to compel them to join in the erection of the bridge; but that point is not before us. If the bridge is a necessity to Yancey county alone, the commissioners of that county, upon the refusal of the commissioners of Mitchell to join in its construction, should have ap plied to the legislature for a special act authorizing the county of Yancey to construct the bridge at its sole expense. Certainly, in the absence of such legislative authority, the warrants are invalid, and their payment must be restrained. Washer v. Bullitt Co., 110 U. S. 558, 4 Sup. Ct. 249, and Bullitt Co. v. Washer, 130 U. S. 142, 9 Sup. Ct. 499, relied on by defendant, differ from this case, in that there the necessity for the bridge was adjudged and the contract ordered by the county court, presided over by the county judge, and the justices of the county, and afterwards ratified by judicial decree. But the county commissioners of this state have not been held invested with any common law power to exceed a restricted authority conferred on them by statute; and in Washer v. Bullitt Co., supra, the court is careful to add: "We find nothing in the decisions of the court of appeals of Kentucky contrary to this,"-in recognition of the right of the highest court of the state to construe the powers conferred by its statute upon its own officers. Wilson v. North Carolina, 169 U. S. 586, 18 Sup. Ct. 435, reprinted in 122 N. C. 1108a, at page 1108c. Whatever hardship there is on the contractors, we cannot recognize any power in public officers to bind the public by contracts not authorized by law. If the warrants have passed for value and without notice to subsequent holders, they are equally invalid and unenforceable in their hands, as the warrants, orders, and bonds of municipal corporations are not entitled to the protection that attaches to mercantile paper, even when negotiable in form. Wright v. Kinney (at this term) 31 S. E. 874. Whether the legislature (which will shortly be in session) may not, with or without a popular vote of the county, validate the warrants, is a matter which the holders may consider, but it is not now before The injunction will issue as prayed. Re us. versed. (123 N. C. 419) HARRIS v. BROWN. (Supreme Court of North Carolina. Dec. 23, 1898.) MINORS' LAND-JUDICIAL SALE-ACTION FOR PRICE -DEFENSE-PRESUMPTION-IRREGULAR CON FIRMATION OF SALE-LACHES-TENder. 1. It is no defense to an action for the price of land belonging to minors, sold by order of court, that their guardian was appointed commissioner to make the sale, though it is an irregularity. 2. Pending an ex parte application to sell land of heirs, one of the adult heirs, after an order of sale, to which he does not appear to have objected, died, leaving minor children, and the sale was afterwards confirmed. Held, that it would be presumed that, before the judge confirmed the sale, the minors were represented by guardian or next friend, and that any order of the clerk on the merits capable of prejudicing the infants was submitted to and approved by the judge of the court, as required by Code, § 286, as a condition to its validity. 3. An irregular judgment confirming a sale of an infant's land will not be set aside where the infant suffered no substantial injustice. 4. A purchaser at a judicial sale of land belonging to minors, if he does not believe the record will protect his title, should not wait 15 years before objecting. 5. After a purchaser at a judicial sale received the rents and profits for several years, and paid a part of the price, he was sued for the price. Held, that he could not defend on the ground that he did not get a good title, where he made no tender of the amount he really owed after the allowance of a counterclaim which he pleaded. Appeal from superior court, Mecklenburg county; Starbuck, Judge. Action by H. W. Harris, administrator, against J. D. Brown. From a judgment for plaintiff, defendant appeals. Affirmed. Burwell, Walker & Cansler, for appellant. Jones & Tillett and Osborne, Maxwell & Keerans, for appellee. FAIRCLOTH, C. J. This proceeding is for the purpose of collecting the balance of the purchase price of certain land bought by the defendant, under an order of the clerk to sell said land for assets in an ex parte petition by the administrator and the heirs, entitled "M. Williams and Others, Ex parte." One of the heirs was a minor, and appeared by his guardian and next friend, who was the administrator of the intestate, and was appointed commissioner to sell the land. The sale was made, and approved and confirmed by the judge of the superior court, and a deed ordered to be made as soon as the purchase price was paid by the defendant, who was the purchaser. The sale was in 1883, and the defendant has been in possession ever since, receiving the profits, paying taxes, and has paid a part of the purchase price. Before the petition was filed, the administrator, guardian of his minor son, the other heirs at law, and the defendant, entered into an agreement (1) that the father would surrender his rights as tenant by the curtesy; (2) that the defendant would purchase the land at the stipulated price; (3) that the defendant's debt against the estate should be a credit on the price bid for the land; (4) that the land should be sold for assets. After this notice to defendant of a motion in the proceeding for a judgment for the balance, a reference was had, to ascertain the balance due, charging the defendant with the purchase price, and crediting him with all he had paid out, and with the amount of his claim against the estate according to agreement, and, for the balance thus ascertained, judgment was entered, and the defendant appealed to this court. The plaintiff succeeded the original administrator, and A. B. Withers, one of the adult petitioners, died, leaving minor heirs, after the sale was ordered, but before it was confirmed. There was no objection made by any one to the sale and its confirmation. In apt time, the defendant objected to the rendition of judgment against him, on the ground that he could not get a good title because of irregularities in the proceeding; that is to say, that the administrator was also commissioner to sell, and guardian of the minor, and because the minor heirs of A. B. Withers were not made parties before the confirmation of the sale. There is no force whatever in the objection that the administrator was also commissioner to make sale. It was irregular that he should represent the minor as guardian, but irregularities do not always render the judgment void. It does not appear that A. B. Withers during his lifetime made any objection to the order of sale, and it is to be presumed that he was content therewith. In adversary proceedings, the parties are at arm's length, and each one fights for victory. In such cases, if minors are parties without guardian, general or special, it is irregular, and, on arriving at maturity, they may reject or accept, at their option. But in ex parte proceedings they must be represented by a guardian or next friend; and the law has wisely provided further protection by requiring that no order or judgment of the clerk on the merits of the case, capable of being prejudicial to the infant, shall be valid "unless submitted to and approved by the judge of the court, in or out of term." Code, § 286. This is an important duty on the part of the circuit judges. Id. § 1439. These duties must be presumed to have been performed before the judge approved and confirmed the sale. After fully considering the record, we are not moved to disturb the judgment. There is no suggestion or contention that any unfair advantage, in the sale, confirmation, or elsewhere in the course of the proceeding, was taken. The petitioners performed their agreement in all respects, and now demand that the defendant shall do the same. "Even an irregular judgment, where it appears from the record or otherwise that the infant suffered no substantial injustice, will not be set aside." Syme v. Trice, 96 N. C. 246, 1 S. E. 480. Where there is no suggestion that the sale was unfair, or that the land did not bring its full value, or that the parties were prejudiced, the court will not set aside the sale, where the defendant died before confirmation, and his heirs were not made parties to the action. Everett v. Reynolds, 114 N. C. 367, 19 S. E. 233. The sale was made 15 years ago, and, if the defendant believed the record would not protect him, he should have made his fears known at an earlier day. Affirmed. MONTGOMERY, J. I concur in the opinion of the court that the judgment ought to be affirmed; and this, for the reason that the defendant sought to relieve himself entirely of his purchase of the land, and without tendering the amount he really owed after the allowance of his counterclaim set up in his answer. The case of Everett v. Reynolds, 114 N. C. 367, 19 S. E. 233, does not apply in this case, in my opinion, for the reason that the heirs at law themselves in that case, who were not parties to the proceedings at the time of the confirmation of the sale, made the motion after becoming parties to set aside the decree of confirmation for irregularity. The court held that, as they had not shown that they had been injured, the decree of confirmation would not be disturbed. In the case before us, the heirs at law of Withers, one of the own ers of the land, who were infants at the time of the decree of confirmation, have not been heard from. They may yet claim injury growing out of the decree of confirmation. The decision of the court in this case binds them before a hearing. DOUGLAS, J. I concur in the concurring opinion. (123 N. C. 400) KISER et al. v. BLANTON. (Supreme Court of North Carolina. Dec. 23, 1898.) REVIEW-PLAINTIFF'S APPEAL-EXCEPTION BY DE VENDANT-ACTIONS-CHATTEL MORTGAGEE 1. An exception by defendant will not be considered on plaintiff's appeal 2. Where a chattel mortgagee sues for possession of the property after default and a re fusal to deliver, it is an action for possession of the property, and not an action in contract. 3. A chattel mortgagee, after default and a refusal to deliver the mortgaged property, may sue for a part of the articles included in the mortgage. Appeal from superior court, Lincoln county; Greene, Judge. Action by W. C. Kiser & Co. against G. Blanton. There was a judgment for defendant, and plaintiffs appeal. Error, and new trial ordered. S. G. Finley, for appellants. FURCHES, J. This action was commenced before a justice of the peace by the plaintiff mortgagee against the defendant mortgagor for the possession of a horse and a cow conveyed in the mortgage. The debt secured was $21, and the property sued for was found by the jury to be worth $17. The plaintiff gave bond under the statute (Code, § 322 et seq.). upon which he obtained an order for possession, and the property was taken thereunder and delivered to the plaintiff. On the return day of the summons the defendant appeared before the justice of the peace who issued the summons, and filed an affidavit, under the statute, alleging that he did not believe he could obtain Justice before the magistrate who issued the summons, and the case was removed for trial to another magistrate. The defendant entered a special appearance be fore the justice to whom the case had been removed, and there moved to dismiss for the reason that service had not been properly made. The court overruled this motion, and proceeded to trial and judgment, from which the defendant appealed to the superior court. In this court the defendant again entered a special appearance and again moved to dismiss for the same reason that he had moved to dismiss before the justice of the peace. The motion was overruled by the judge upon the ground that any want of proper service had been waived by defendant's appearing and filing an affidavit, and having moved for trial, and the defendant excepted. During the progress of the trial it appeared that other property was included in the mortgage, besides the horse and the cow sued for in this action, and that the whole of the property conveyed in the mortgage was worth more than $50. Upon this fact being made to appear to the court, the defendant again moved to dismiss the action, for this reason, alleging that it was splitting up the plaintiff's claim for the purpose of acquiring jurisdiction, and for that reason was a fraud upon the jurisdiction of the court. The court allowed this motion, dismissed the plaintiff's action, and the plaintiff excepted and appealed, but the defendant did not appeal. As the defendant did not appeal, his exception to the court's refusing to dismiss the action upon his first motion (for want of proper service) cannot be considered on this appeal. But his second motion, and the ruling of the court thereon, from which the plaintiff appealed, it is contended, raise the question of Jurisdiction; and, to determine this question, it is necessary to consider the character of the action,-whether it is upon contract or in tort. If it is an action on contract (the note) which is for $21, and the proceeding in claim and delivery is ancillary to that, it is held that the justice would have jurisdiction of the action on the note, whether he had jurisdiction of the claim and delivery proceeding or not, and that the action should not have been dismissed. Hargrove v. Harris, 116 N. C. 418, 21 S. E. 916. But this would not give the plaintiff the relief he wanted, the possession of the property. He would be no better off with a personal judgment against the defendant, and nothing more, than he would be if he had no mortgage. It is therefore manifest that it is an action for the possession of the property, which the defendant had refused to deliver to the plaintiff, that he might foreclose the mortgage by a sale of the same, and that it was not an action of debt on the note. McGehee v. Breedlove, 122 N. C. 277, 30 S. E. 311. It is said that this is an action to foreclose the mortgage, and that a justice of the peace has no equitable jurisdiction. And it is true that a magistrate has no equitable jurisdiction. Dougherty v. Sprinkle, 88 N. C. 300; Wilson Cotton Mills v. C. C. Randleman Cotton Mills, 116 N. C. 647, 21 S. E. 431. But it is not true that this is an action to foreclose the mortgage. It is a legal action for the possession of property, and is what would have been an action of replevin under the old practice. It would have been a common-law action of detinue, if the plaintiff had not taken out claim and delivery proceedings. Jones, Chat. Mortg. §§ 705, 706. After default and refusal to surrender possession to the mortgagee, the mortgagee becomes, in law, the absolute owner of the mortgaged property, though the mortgagor had the right to re deem, until the property is sold; and the mortgagee is entitled to the same remedy against him for the possession that he would have against any other person who had the possession of his property. Id. And in this action he may have the balance due ascertained and redeemed, if he will. Id. The same doctrine is held by this court in Jarman v. Ward, 67 N. C. 32, and in Hopper v. Miller, 76 N. C. 402. It is true that these cases were not brought by mortgagees. But as a mortgagee, after default and refusal to deliver the property, occupies the same position as a stranger, they apply with equal force to this case, as if the mortgagor had been a stranger. The right of the mortgagee to the possession continues as long as any part of the mortgaged debt remained due. Jordan v. Farthing, 117 N. C. 181, 23 S. E. 244; Jones, Chat. Mortg. 8707. This being an action for the possession of the property and not on contract, the justice's jurisdiction is limited to $50 in amount. The property sued for in this action was found by the jury to be worth only $17. So there is no want of jurisdiction, unless the plaintiff was compelled to bring his action for all the property named in the mortgage. The fact that plaintiff brought his action for a part of the property conveyed in the mortgage does not fall within the rule against splitting up a debt on contract to acquire jurisdiction, for the reason that it is not brought on contract. But if you apply the principle of that rule, by way of analogy, it will not sustain the defendant's contention and the ruling of the court. This rule only applies to the splitting up of a single contract, as a note for $400 split into two actions of $200 each. But if it were an unsettled account, consisting of a dozen items, and amounting to $400, it might be split up into several accounts, and more than one action brought, or they might all be included in one action. Caldwell v. Beatty, 69 N. C. 365. But it seems to have been settled by this court that the plaintiff, if he chooses to do so, can bring an action for a part of the articles only, included in the mortgage. Boone v. Darden, 109 N. C. 74, 13 S. E. 728; Smith v. Tindall, 107 N. C. 88, 12 S. E. 121. Therefore, upon principle and authority, we are of the opinion that there is error. New trial. (123 N. C. 656) CHARLOTTE OIL & FERTILIZER CO. v. WITNESSES-COMPETENCY-PERSONAL REPRESENT 1. Code, 590, providing that, in an action against an administrator, the party in interest shall not testify as to transactions with the deceased, disqualifies a surviving partner from testifying who composed the firm of which he was a member, in an action against the admin istrator of the deceased partner on the firm note. 2. A question to a surviving partner, in an action against a deceased partner's administrator on an alleged firm note, whether, outside of any transaction or communication with the deceased, he knew whether or not deceased was a member of the firm, is proper to show whether witness had knowledge of that fact from sources extraneous to his personal communications or relations with deceased. 3. A question whether witness had any conversation with the administrator of deceased in regard to deceased's having been a partner of a firm which made a note, which was the subject of the action, is improper, as tending to elicit declarations of the administrator for the purpose of binding his intestate. Appeal from superior court, Cleveland county; Green, Judge. Action by the Charlotte Oil & Fertilizer Company against J. P. Rippy, administrator. There was a judgment for defendant, and plaintiff appealed. Reversed. Burwell, Walker & Cansler, for appellant. D. W. Robinson, for appellee. MONTGOMERY, J. A note in the sum of $430, signed "D. F. Bridgers & Co.," payable to the plaintiff, was executed and delivered, the signature having been written by D. F. Bridgers. This action is brought to recover of the defendant the amount of the note, the allegation in the complaint being that William Rippy, the intestate of the defendant, was one of the partners in the firm of D. F. Bridgers & Co. On the trial, the plaintiff introduced D. F. Bridgers himself, who said that he was a member of the firm. The witness was then asked who composed the firm of D. F. Bridgers & Co., the object of the question being to show that the intestate of the defendant was a member of the firm. An objection by the defendant was sustained, and the plaintiff excepted. His honor's ruling was correct. The precise point was decided in Lyon v. Pender, 118 N. C. 150, 24 S. E. 744. The same witness was then asked this question, "Outside of any transaction or communication with the deceased, do you know whether or not William Rippy was a member of the firm of D. F. Bridgers & Co.?" to which an objection was interposed by the defendant, and the objection sustained, and the plaintiff excepted. There was error in that ruling of his honor. In Sikes v. Parker, 95 N. C. 232, the plaintiff sought by his own testimony to prove a partnership between himself and the intestate of the defendant. The conclusion of the court there was that, ordinarily and naturally, it would be supposed that the witness got his information from a transaction or communication with the deceased, but that the contrary might be shown. The court in that case said: "This would be in the usual order of things. It might perhaps be possible that the plaintiff could have answered the question thus put to him without testifying to such a transaction or communication; but, if he could, it ought to have appeared that he could, in order to render his answers competent. He might have been interrogated as to the source of the information he had, pertinent to the matter inquired about, with a view to determine the question of the competency of such answers as be might make. He was competent to testify that he did not derive his information from a transaction or communication between himself and the intestate." The same principle of evidence is declared in Armfield v. Colvert, 103 N. C. 147, 9 S. E. 461. The question ought to have been allowed as a preliminary one to the further statement of the witness of any facts which tended to prove the partnership, outside of personal communications or transactions with the intestate. And, if such evidence was found competent by the court, then it should have been submitted to the jury. The refusal of his honor to allow the question cut off such inquiry, and was equivalent to a ruling that the witness under no circumstances could testify as to the intestate's being a partner, even though he might have information about the same outside of any personal communications or transactions with the intestate. The same witness was further asked: "Did you have any conversation with the administrator of the deceased in regard to the deceased's being a partner of the firm of D. F. Bridgers & Co., if so give it?" The defendant objected, and the objection was sustained. In general terms, it is stated in Greenl. Ev. 179, that the admissions of executors and administrators can be introduced against themselves as the representatives of the heirs, devisees, and creditors. But in our researches we have found no case where the admissions or declarations of an executor or administrator, disconnected with the settlement of the estate, some matter of administration,were introduced against him as such representative; and we think, therefore, that the question was too broad in its scope. The witness might have been asked if he had heard the administrator, in connection with the settlement of his intestate's 'estate, and in relation to its indebtedness, say anything in connection with the intestate's liability for the debts of the partnership, and what was said. We will not consider the charge of the court, for it is not necessary. It is errone ous in some material respects. New trial. |