This case is so incomplete in the statement of the facts that we feel sensible of our inability to reach the justice of the case, trammeled as we are by the findings of facts and exceptions thereto. All we can do is to give a partial adjudication upon the case.
(289) The first exception by defendants, that the court found as a fact that the deed of John A. McDonald and W. K. Dawkins in A. C. and D.C. Patterson conveyed only the interest of W. K. Dawkins in the land, is well taken, for the deed which accompanies the record as an exhibit shows that the entire tract of land was conveyed. But that, in the view we take of the case, is immaterial.
The second exception to the finding, "that Randolph McDonald sold and conveyed his interest in the land to W. K. Dawkins, because it is not supported by the testimony," cannot be sustained. It is supported by the testimony of A. C. Patterson, who swore that the clerk made a deed to McDonald and McDonald conveyed to Dawkins.
The third exception — "Because the court failed to find that the infant heirs of Randolph McDonald have not been served with notice of this motion." This exception is without merit, because it was shown by the testimony of A. C. Patterson that McDonald had disposed of his interest, and his heirs having no interest were not necessary parties.
The fourth exception to the finding, "that McDonald as surety was forced to pay the purchase money." We cannot see what difference it could make whether the payment was voluntary or involuntary.
The fifth exception: "Because his Honor failed to find that the Pattersons have been in the adverse possession of the lands for more than seven years prior to the commencement of this proceeding." This exception is without foundation, for the court did find that A. C. and D.C. Patterson took actual possession of said land on 5 February, A.D. 1877, and have had possession since that time.
The sixth exception: "Because the court found that the heirs of George Dawkins had no notice of the motion to enter the decree of 1874." The exception cannot be sustained. Ordinarily when an action is pending all the parties are presumed to have notice of all orders, etc., made in the cause, because in our practice the cause, while in (290) progress, is continued from time to time; but no such presumption can arise when there is an old action pending in court before the year 1868, and which has never been transferred to the new docket, and the motion, as in this case, is made twelve years after the final judgment or decree.
The seventh exception was to the "judgment of the court and conclusions of law, because illegal and not warranted by the facts." *Page 259
Before we render an opinion upon this exception it is proper that we should consider the grounds of a motion made by the defendant, in limine, to dismiss the motion of the plaintiff. The first ground assigned for the dismission of the motion was because the heirs of Randolph McDonald and Miles Blue are not made parties. We have already disposed of this ground, so far as relates to the heirs of McDonald, and as to Blue, we do not think it is essential that he should be made a party. His Honor has found that he has not received his share of the purchase money, from which it is to be inferred that he is one of the heirs of George Dawkins, and was a tenant in common with the other heirs. The fact that the money was paid into the office in 1874, and that he has not in all this time applied for his share of the money, is very strong evidence that he discards the order of the court made in 1874, and is content to hold to his rights as a tenant in common of the land. If, then, that order should be set aside it would not in any way affect his right, but rather subserve it.
The second ground, that the heirs of George Dawkins do not offer to pay into court the money paid by Randolph McDonald and W. K. Dawkins will be considered in connection with the judgment rendered by his Honor in the court below.
The third ground, because A. C. and D.C. Patterson acquired title by virtue of a conveyance made 30 October, 1874, before the beginning of the term of court, 2 November, 1874, when the decree sought to be set aside was made. We do not think this a ground for dismissing the motion, for whatever interest he may have acquired by the said conveyance we are not called upon now to decide, as it will be a (291) matter for future adjudication, in the event of the order of 1874 being set aside. But we do feel at liberty to say that he has not, from what appears in the case, an absolute title to the whole land.
We now come to the consideration of the judgment rendered by his Honor in the court below. We refrain at this time, under the circumstances of this case, from holding that his Honor committed no error in deciding that the order of Fall Term, 1874, was irregular, for it is obnoxious to objection; (1) Because it is a judicial procedure that is without authority or precedent to support it; (2) because there was no notice given to the parties to be affected by it; (3) because there was no affidavit or foundation laid for the motion showing that the principal, George Dawkins, or his estate was insolvent.
For it is never the practice of the court, where land is sold by a clerk and master in equity, to order the title to be made to the surety, upon the payment by him of the purchase money, unless it is shown that the principal is insolvent. Egerton v. Alley, 41 N.C. 188; Green v. Crockett, 22 N.C. 390. *Page 260
But we do hold "that he erred in ordering the clerk to make title to the lands to the heirs of George Dawkins, and to the assignees of said heirs as hereinbefore set forth, according to their respective rights," and here the second ground assigned by the defendant for dismissing the plaintiff's motion, to wit, because the heirs of George Dawkins do not offer to pay into court the money paid to Randolph McDonald and W. K. Dawkins, appositely applies to the latter part of his Honor's judgment.
For it is a well established principle, both of law and equity, that no one can have a contract enforced in his favor unless he has performed, or is ready to perform, his own part. Adams' Equity, p. 88; Addington v.McDonnel, 63 N.C. 389.
But we do not now decide that the order of 1874 shall be vacated, for, however irregular it may be, it may yet be sustained as a valid order if the heirs of George Dawkins have given their sanction to it (292) by receiving their shares of the purchase money paid into the office by Randolph McDonald. If they have received their shares of the purchase money, it would be a gross injustice to the heirs or assignees of McDonald to set aside the order of 1874 and have title made to them without a full indemnity to McDonald or his assignees. But if they had offered or were still to offer the indemnity, we think their acquiescence in the irregular order would debar them from setting up any title to the land.
The facts of the case are imperfectly stated, and this is a matter so seriously affecting the rights of the parties that we think the justice of the case and the rights involved demand that the case should be remanded.
The case is therefore remanded that a reference may be had to ascertain whether any of the heirs of George Dawkins have received their shares of the purchase money paid into the office by Randolph McDonald, and if so, who they are and what amounts they have recovered, whether in full or in part of their shares, and if in part, what part; and to the end that the parties may make application to the court for leave to amend their pleadings, make parties, appoint guardians for infants, and file additional exceptions, and do any other matter or thing that may be deemed necessary to relieve the case of its present defects and imperfections.
Error. Remanded.
Cited: S. c., 104 N.C. 301; Coor v. Smith, 107 N.C. 431. *Page 261