Orrknder V. Chaffin.
and consulted with his counsel as to the title, and that th administrator advertised to sell in thirty days, refused to postpone the sale and afterwards invited objections to selling, taken in connection with the very great inadequacy of the price and other circumstances, might have been presented by counsel in the argument, as apparently inconsistent with and having a tendency to contradict the plaintiff's statement that he acted in good faith. If the answer distinctly charge a fraudulent combination, or was aided by the answer of Chaffin so as to cure the defective pleading, an issue should have been submitted involving the question whether there was a fraudulent combination. It would seem no<r, that whatever defect there may be in the allegation of fraud, the answer is aided in this respect by the denial of collusi by the other party. The question whether Conatzer forbai the sale and thereby caused the land to bring a small price, would bear upon the main issue, but would not be decisive of the controversy. If Orrender acted in good faith and the land sold for a song, simply because of the imprudent and unfortunate course pursued by the purchasers, claiming under the heir?: at law, the validity of the sale and of the Sheriff's deed cannot be successfully assailed. His Honor should have submitted an appropriate issue involving and decisive of the questions whether the purchase was made in good faith, or whether there was a.fraudulent combination I which prevented the land from bringing a fair price. 'n; his instruction to the jury, it was his right, and might have i been made by proper requests his duty, to recapitulate to 1 the jury all of the testimony lending to establish ortodis-| prove the allegation of fraud set up as a ground of affirmative relief.
Counsel did not insist, with apparent confidence, upoU the view that the purchasers from the heirs at law took a good title despite the power of sale contained in the will. We will not, therefore, discuss that subject at any considerable Orrender V. Chaffin.
length, as the will of David Call, Sr., was construed in the case of Orrender v. Call, 101 N. C, 399, and it was held that the administrator had power under the will to convey the land after the death of his widow. It was also held in that case that no alienation of a devisee operated to defeat the power of sale, and that the possession of the alienee under such deed was not adverse. It will be possible, if any mistake has been made as to the number of devisees under the will, to correct it when another judgment shall be entered.
It was proper to make the administrator Chaffin a party defendant, as it was necessary to have him before the Court before the demand for affirmative relief could be heard and granted.
For the error of the Court in directing the response of the jury to the issues, a new trial must be awarded to the plaintiff.
Error.
APPEAL OF THE DEFENDANT CONATZEk.
Avery, J.: The defendant appeals from the ruling of the Court directing the issues to be found in his favor, and to the refusal to give instructions prayed for. Under the circumstances, it is too plain for argument that there is no error in the ruling of the Court, of which the defendant Conatzer could justly complain. There was no error assigned except that mentioned, which seems to have been the common ground of exception by both parties.
and consulted with his counsel as to the title, and that th administrator advertised to sell in thirty days, refused to postpone the sale and afterwards invited objections to selling, taken in connection with the very great inadequacy of the price and other circumstances, might have been presented by counsel in the argument, as apparently inconsistent with and having a tendency to contradict the plaintiff's statement that he acted in good faith. If the answer distinctly charge a fraudulent combination, or was aided by the answer of Chaffin so as to cure the defective pleading, an issue should have been submitted involving the question whether there was a fraudulent combination. It would seem no<r, that whatever defect there may be in the allegation of fraud, the answer is aided in this respect by the denial of collusi by the other party. The question whether Conatzer forbai the sale and thereby caused the land to bring a small price, would bear upon the main issue, but would not be decisive of the controversy. If Orrender acted in good faith and the land sold for a song, simply because of the imprudent and unfortunate course pursued by the purchasers, claiming under the heir?: at law, the validity of the sale and of the Sheriff's deed cannot be successfully assailed. His Honor should have submitted an appropriate issue involving and decisive of the questions whether the purchase was made in good faith, or whether there was a.fraudulent combination I which prevented the land from bringing a fair price. 'n; his instruction to the jury, it was his right, and might have i been made by proper requests his duty, to recapitulate to 1 the jury all of the testimony lending to establish ortodis-| prove the allegation of fraud set up as a ground of affirmative relief.
Counsel did not insist, with apparent confidence, upoU the view that the purchasers from the heirs at law took a good title despite the power of sale contained in the will. We will not, therefore, discuss that subject at any considerable Orrender V. Chaffin.
length, as the will of David Call, Sr., was construed in the case of Orrender v. Call, 101 N. C, 399, and it was held that the administrator had power under the will to convey the land after the death of his widow. It was also held in that case that no alienation of a devisee operated to defeat the power of sale, and that the possession of the alienee under such deed was not adverse. It will be possible, if any mistake has been made as to the number of devisees under the will, to correct it when another judgment shall be entered.
It was proper to make the administrator Chaffin a party defendant, as it was necessary to have him before the Court before the demand for affirmative relief could be heard and granted.
For the error of the Court in directing the response of the jury to the issues, a new trial must be awarded to the plaintiff.
Error.
APPEAL OF THE DEFENDANT CONATZEk.
Avery, J.: The defendant appeals from the ruling of the Court directing the issues to be found in his favor, and to the refusal to give instructions prayed for. Under the circumstances, it is too plain for argument that there is no error in the ruling of the Court, of which the defendant Conatzer could justly complain. There was no error assigned except that mentioned, which seems to have been the common ground of exception by both parties.
