Upon the agreed statement of facts, his Honor decided in favor of plaintiffs, and defendant appealed. This is a controversy without action, submitted under section 567 of The Code. The following is a statement of the facts agreed upon by the parties.
1. John Carson, Sr., was the owner of a large tract of land in McDowell County, and devised the same to his sons, J. Logan Carson and George M. Carson.
2. J. Logan Carson and George M. Carson conveyed to their brother, William M. Carson, a one-third undivided interest in said land, in trust for the benefit mentioned in said deed of trust. (551)
3. William M. Carson, in pursuance of the power contained in said trust deed, conveyed one-third undivided interest in certain of said tract of land to his two sons, John Carson, Jr., and William L. Carson.
4. William L. Carson died intestate in 1862 at the age of about twenty-one years, and his real estate descended to his heirs at law.
5. The heirs at law of William L. Carson were the following brothers and sisters of the whole or half blood, to wit: John Carson, George S. Carson, Mrs. E. A. Motz, Mrs. Matilda Ervin, Mrs. Catherine Gowan; and the following children of his deceased sister, Mrs. Martha Burgin, to wit: Mrs. Mamie Morris and Mrs. Catherine Eaves.
6. Mrs. Catherine Eaves inherited, by descent, from William L. Carson, one thirty-sixth interest in the lot of land in controversy, and which is hereinafter described.
7. That the following entry appears on the minute docket of the County Court for McDowell County, on September 21, 1863, to wit:
"Ordered by the court, that John Carson be appointed by the Court administrator upon the estate of William L. Carson, and that he give bond in the sum of $2,500.
"Bond executed, with R. C. Burgin surety thereto, which is accepted by the court, and he was duly sworn and letters issued to him therefor." *Page 390
On the minute docket of said court is also the following entry:
"Wednesday, March 23, 1864 — John Carson, Administrator, etc., against the Heirs at Law of William L. Carson.
(552) "Petition for Sale of Land to Pay Debts.
"It appearing to the satisfaction of the Court that the personal estate of William L. Carson, deceased, is insufficient to pay the debts and charges of administration:
"It is therefore ordered, adjudged and decreed that his administrator, John Carson, have license to sell the real estate of William L. Carson, which is specified in the petition, in order to pay such of the said debts and charges of administration as the personal estate be insufficient to discharge.
"It is further ordered and decreed that the said John Carson, after forty days advertisement at the courthouse door in the town of Marion, and at three other public places in the county of McDowell, proceed to sell the land at the courthouse door aforesaid to the bidder at public auction, on a credit of 12 months, taking bond with approved surety for the payment of the purchase money, and report in writing to the next term of this court."
On May 5, 1864, an order appears on said docket in the following-entitled case, of which the following is a copy:
"John Carson, Administrator, etc., and Others, ex parte — Petition to Sell Real Estate to Pay Debts.
"It appearing to the satisfaction of the Court that the personal estate of William L. Carson deceased is insufficient to pay his debts and charges of administration:
"It is therefore ordered, adjudged and decreed that his administrator, John Carson, have a license to sell the real estate of the said William L. Carson, which is specified in the petition, in order to pay so much of the debts and charges of the administration and as the personal estate may be insufficient to discharge.
"It is further ordered and decreed that the said John Carson, (553) after forty days advertisement at the courthouse in the town of Marion, and at three or more public places in the county of McDowell, proceed to sell said land at the courthouse door aforesaid to the highest bidder at public auction, on a credit of 12 months, taking bond with approved surety for the payment of the purchase money, and report to this court."
On September 25, 1866, there was made upon the said minute docket of the said County Court of McDowell an entry which is as follows: *Page 391
"John Carson, Administrator, etc., and Others, ex parte — Petition to Sell Real Estate Debts.
"This cause coming on to be heard, and it appearing that John Carson, administrator of William L. Carson, on the 20th day of September, 1864, in obedience to a former order in this cause, sold the land described in the petition of Caleb Motz, on a credit of 12 months, at the price of $1,058, and that he took bond with good security for the payment of the purchase money, and the said sale appearing to be reasonable:
"It is therefore ordered, adjudged and decreed that the said sale be in all respects confirmed.
"It is further ordered, adjudged and decreed that the said John Carson proceed to collect said bond, and that he apply a sufficiency of the proceeds thereof to the payment of such debts and charges of the administration as the personal estate may have been insufficient to discharge; and he is to report to this court any surplus which may remain in his hands after the payment of the same, to the end that the said surplus may be applied under the direction of this court for the benefit of the heirs of the deceased, according to the act of Assembly."
8. That no papers relating to the administration of (554) William L. Carson's estate, or to the sale of the land belonging thereto, can be found, if any ever existed, and no entry in reference thereto, other than what is copied in full above, appears on any of the court records of McDowell County.
9. That John Carson, on the 15th day of July, 1873, executed to Caleb Motz a deed; and Caleb Motz executed to John Carson a deed bearing date July 16, 1873.
It will be seen from the facts agreed that the County Court of McDowell, at March Term, 1864, made an order authorizing a sale of the lands of W. L. Carson for assets to pay debts. It appears to have been made in an action of "John Carson, administrator, etc., against the heirs at law of W. L. Carson." It appears that at May term of the same court, another order was made in similar, if not the same terms, authorizing a sale of the intestate's lands for assets to pay debts. This appears to have been an action styled "John Carson, administrator, and others, ex parte."
At September Term, 1866, the administrator made a report of sale to Caleb Motz at the price of $1,048, when said report was confirmed in these words: "It is therefore ordered, adjudged and decreed that the said sale be in all respects confirmed." No other papers connected *Page 392 with this proceeding to sell land, nor with regard to the administration or settlement of W. L. Carson's estate, can be found.
The plaintiffs contend that these orders of sale are void, and that the sale made under them is also void, and conveyed no title to the purchaser. And, as it is admitted that they were minors at that time; that they were married before they were 21 years of age, are now and have been under the disability of coverture ever since their marriage; that no statute of limitation had run against them, that they are entitled to recover.
This presents the question as to whether these orders of sale (555) were void, as claimed by the plaintiff, or not.
It was claimed on the argument for the plaintiffs (and we are not furnished with any argument or brief for defendant), that the sale was made under the second order (May Term, 1864), which order is styled "John Carson, administrator, etc., and others, ex parte," and the report of sale is styled "John Carson, administrator, etc., and others, ex parte," and the plaintiffs contend that this of itself shows that they were not parties. We do not assent to this proposition, though the better and more regular way would have been to make the heirs at law of the defendant's intestate parties-defendant, yet we do not say that this was absolutely necessary in order to bind the heirs and convey the title. It has been held that it was not. Harris v. Brown, 123 N.C. 419, and Ex Parte Avery, 64 N.C. 113.
But it appears, by the facts agreed, that there was an order authorizing this sale, at March Term, 1864, in a case of John Carson, administrator, against the heirs at law of his intestate, W. L. Carson. And no reason has been assigned, and we can see none, why he should have brought another action returnable to the next term of the same court for the same purpose, when he had already obtained an order of sale at the previous term; and we do not believe he did. How this second order happened to be made, we do not positively know. But as we see no reason for making it, and no sale having been made under it, a bungling clerk, in time of the war, when he was thinking more about that than about the duties of his office, brought it forward on his docket and inadvertently styled it "John Carson, administrator, etc., and others, ex parte." If this was not the case, or if this is not an explanation of the second order, as we think it is, the entry "John Carson, administrator, etc., and others,ex parte" strongly sustains the view that the heirs at law of W. L. Carson were made plaintiffs with the administrator. It shows that some others were parties besides the administrator, and (556) who could have been these other parties but the heirs at law *Page 393 of his intestate, W. L. Carson? It was not necessary that any one but the administrator and the heirs at law of W. L. Carson should have been parties.
But if the administrator had two orders to sell, one of which authorized the sale and the other did not, and he made the sale and reported it in the wrong case, can it be contended that the sale is void on that account? The administrator was an officer of the court in making this sale, and while it would have been irregular for him to report the sale as having been made under one order when it was made under another, yet this irregularity does not make the sale void. Suppose an officer has two capiases for the arrest of B, one of which is valid and the other is not, and he makes the arrest, and, in making his return, by mistake or inadvertence, he makes it on the wrong paper — the bad capias — will it be contended that he had no authority to make the arrest, and is liable for damages for false imprisonment? We think not.
It is true that the entries and judgments that can now be found do not show who were parties except the administrator, John, and the heirs at law of W. L. Carson, in one entry, and John Carson, administrator, etc., and others, in the other entry. But these entries were made thirty-five years ago, and all the papers connected with the case are lost and can not be found. It is probable that, if they could be found, they would show that the proceeding was regular; and as this might appear to be so if we had the papers, the lawpresumes that it is so. The County Court at that time had jurisdiction of the subject matter — had power to order the sale of real estate for assets — and sufficient appears to show that it had the matter before it on petition, and that it took jurisdiction and ordered the sale. The jurisdiction of the parties and the regularity of the proceeding will be presumed unless the contrary is plainly shown, where the matter has stood as long as this has, and (557) the rights of third parties have intervened, as they have here.
In Sledge v. Elliott, 116 N.C. on p. 717 (a case from the same county), it is said that, "After it has remained unimpeached for nearly thirty years, the burden of overcoming a presumption of fairness and regularity in the original record rests upon any one who seeks to disturb a title founded on it." The case of Sledge v. Elliott is very much like this, and, as we think, the opinion was put upon solid ground.
In Adams v. Howard, 110 N.C. 15, the administrator got a license to sell land for assets in 1860, and sold a part of the land. After 1866 he sold other lands, and it was contended that he had *Page 394 no right to sell under that order, and steps were taken to get another order, and another order was obtained, in the nature confirming the sale. But this was attacked for irregularity, and the Court held that the second order was not necessary; that the first order authorized the sale. The case further states "that after a lapse of 20 years, the appellants ask to set aside the sale for irregularities without showing that they have been at all prejudiced by them."
The case of Hare v. Holloman, 94 N.C. 14, is very much like the case under consideration: An action for possession of land that had been sold by an administrator for assets, where the sale is attempted to be avoided. There, the record had been lost or destroyed, as in this case. In that case the Court say: "Not only do these entries show the special facts which they recite, but by aid of the maxim omnia presumunter rite esse acta, they furnish inferential evidence of the regularity of that precedent action, upon which the validity and efficiency of what those entries show to have been done by the Court were dependent. This rule is indispensable when, (558) as in the present case, the original papers in the case have been burned or lost. . . . It is therefore a reasonable inference that the petition did set out the names of the others as well as the name of one of the defendants to whom as a class the land descended."
In England v. Garner, 90 N.C. 197, it is said: "If he was an infant this fact did not render the judgment as to him absolutely void. It was irregular, and might, upon proper application, have been set aside, not however, to the prejudice of bona fide purchasers, without notice."
It is also said in Hare v. Holloman, supra: "We should be reluctant to disturb titles acquired under the former practice, universally recognized and acted on in this State, thus introducing distrust and confusion in regard to the tenure of estates, and the loss of confidence in the judicial action of the courts, the mischievous results of which can hardly be foreseen, and we could do so only under clear and cogent convictions of error entering into them."
It being shown that the court had jurisdiction of the subject matter — the right to order a sale of land for assets; that it had a petition before it for that purpose, and that it acted upon the petition and made the order, it must be, and it is presumed, in the absence of proof to the contrary, that the proceeding was regular, and the court had jurisdiction of the parties. The administrator having the authority to sell under one or both of these orders, it made no difference under which he reported the sale. At most, this was only an irregularity *Page 395 for which this Court, thirty-five years afterwards, will not declare the order of sale void when the interests of third parties are involved, and when it is not shown that any one has been damaged, and when it is not shown but what every dollar was necessary to pay debts, and no fraud has been alleged.
We can not thus jeopardize title to land where parties have (559) been holding thirty years and more. To allow such parties, now, to be turned out of house and home because some old record can not be found that has been accidentally or purposely destroyed, thereby enabling some remote heir to claim the land, would not be just.
There is another question presented by the case agreed which seems not to have been considered in the judgment of the court, but which we think we ought to pass upon; that is, the sufficiency of the description in the deed. And we do not see why this is not sufficient to enable the parties to locate the land. It would seem that the 640-acre grant, upon which the town of Marion is located, might be identified. And if it is located, it would seem that the 400-acre tract, which is a part of the 640-acre tract, might also be located, by getting the deed to the part theretofore sold off of the 640-acre tract, and locating that boundary. It seems to us that a surveyor might take these deeds and locate the 400-acre tract.
There is error, and the judgment is
Reversed.