The defendants insisted that the court below erred in not dismissing the action, because of a want of jurisdiction, that is, that because of the uniting of the trustees with the administrator in the petition to make real estate assets, the clerk did not have jurisdiction of the matter, and that therefore the Superior Court, on the case being sent to that court from the clerk for trial, did not have jurisdiction. InRoseman v. Roseman, 127 N.C. 494, and cases there cited, it is difficult to understand the exception of the defendant to dismiss the action (187) on the ground assigned. The defendants' exception to the uniting of the administrator and the trustees, McLean and Melvin, and to the introduction of the deeds of assignment as evidence in the case, ought not to be sustained. We think it commendable that the trustees *Page 173 and the administrator should have jointly commenced this proceeding, for it is almost certain that time and expense have been saved, and that the property will sell for a better price under the direction and order of the court in this case than it would have brought if the administrator had sold the equity of redemption and the trustees or either one of them had sold the property under the deed of trust.
There is no merit in the ground taken in the defendant's brief that the deeds of trust and the rights of creditors under them were destroyed because of an allegation in the petition that the intestate was seized in fee simple of the lands described in the petition, embracing those conveyed in the deed, and an admission of that allegation by the defendants. The whole pleadings go to show that the deed of trust was to be respected in its provisions as to the application of the proceeds of the sale of the land conveyed therein, and the allegation that the fee-simple title was in the intestate was simply made to show that the title to the property would be complete and the entire interest in the land would be conveyed under the order of sale prayed for by the petitioners. The defendants' contention is too highly technical for adoption.
From our point of view, it makes no difference whether the deed of trust of 1893 was valid or not. Either that or the one of 1888 was valid, and the trustees named in both are parties to this proceeding. It appears from the defendants' statement of the case on appeal that both McLean and Melvin were parties plaintiff; but in the plaintiff's appeal McLean does not seem to be a party. If he is not, it will be well for the plaintiff to bring him in by amendment. In the judgment it appears that Newton Robinson is appointed a commissioner to sell (188) the land for cash, etc. Before that sale is made the commissioner must be required to file a proper bond in a sum double the value of the property to be sold, conditioned for the faithful discharge of his duty in making the sale and in applying the proceeds. This must be done, that the creditors may feel as secure in the sale of the property by the court as if the sale had been made by one of their own choice.
No error.
Cited: Bank v. Hamrick, 162 N.C. 217; Kirkwood v. Peden, 173 N.C. 463;Hicks v. Wooten, 175 N.C. 601. *Page 174