MONTGOMERY, J.

At August Term, 1887, of Lenoir Superior (259) Court, there was an action pending in which W. D. Broadway, M. L. Broadway, and Alice (Broadway) Faulkner, were the plaintiffs, and E. S. Broadway, their brother, was the defendant. The object of the suit was to have the defendant declared a trustee for them of a certain tract of land which had been sold by a decree of the Superior Court, made at Fall Term, 1880, and which land at its sale was purchased, as the plaintiffs allege, by the defendant, for their benefit. At the aforesaid August term of the court, the issues joined by the pleadings were submitted to the jury, and the responses thereto were in favor of the defendant, and judgment was rendered accordingly.

The plaintiffs were infants under twenty-one years of age, and their next friend, W. B. Ferrell, had died before the verdict and judgment, and no other next friend had been appointed.

The present proceeding grows out of a motion of the plaintiffs, who are now of full age, to have that verdict and judgment set aside for irregularity. Notice was served upon J. W. Grainger, a purchaser of the land from E. S. Broadway. It was stated in one of the affidavits filed by the plaintiffs (that of C. A. Broadway), "That the alleged verdict and judgment in the cases of W. B. Ferrell and wife et al. against E. S. Broadway, was by consent, and no evidence upon the issues nor proof of the facts were ever submitted to the jury, it being a merely formal submission of the issues, and very soon thereafter the property came into the possession of J. W. Grainger; that affiant was present when this matter was submitted as above stated, and affiant verily believes that J. W. Grainger was also present and was aware of the manner in which the issues were submitted by the court. Grainger, in his answer to the motion in his first affidavit, did not unequivocally deny the statements made in the affidavit, above mentioned, but he affirmed that (260) the plaintiffs were estopped by the judgment of 1880, under which the lands were sold and purchased by the defendant. He did deny that he had any connection either with procuring or obtaining the rendition of the judgment at August Term, 1887, or that he knew of the proceedings in the case; but that was not a denial of the statement in the affidavit of C. A. Broadway that he, the defendant Grainger, knew that the verdict and judgment were made by consent of the counsel of the infant plaintiffs and the defendant E. S. Broadway. But in a second affidavit filed two days after the first he did make a specific denial of knowledge of the alleged compromise. He did not deny, however, that he had knowledge before he took a deed for the land. The defendant E. S. Broadway had conveyed to Grainger the land after the verdict and judgment of 1887.

Whether or not the issues were submitted and responded to by the jury, as was affirmed by C. A. Broadway in his affidavit, and the defendant had knowledge that they had been so submitted, were most material matters to be inquired into in this investigation. His Honor made no finding of fact upon that question, and we are satisfied that no just or intelligent disposition can be made by this proceeding until that fact is found. It is true that his Honor was not requested by the plaintiffs to find that fact, but upon a thorough examination of the matters embraced in this motion, as they appear in the record, we have decided ex mero motu to remand the case that that fact may be found. Fertilizer Co. v. Reams, 105 N.C. 283.

We are not intimating, by making this order to remand the case, that a next friend of the infants can not agree to a consent decree or judgment in a case where all the facts are developed and found by the court, and an order made that the arrangement would be best for (261) the interest of the infants. Such a case as that is not before us. But it may be taken to be the law that, in a case where issues are joined between infants on one side and the adverse party and no evidence is introduced, and nothing is done or said on the trial except that an agreement is entered into by the next friend or counsel of the infants, that the verdict shall be rendered against the infant, the verdict and judgment will not bind the infants. In such a case, the court would have no knowledge of the facts, and therefore could not exercise any supervision over the interest of the infants. The object in having a next friend appointed for infants is to have their rights and interests claimed and protected, and the next friend or their counsel will not be permitted to yield their rights to others by a consent verdict and judgment where the court has exercised no supervision over the arrangement.

His Honor found as a fact that the plaintiffs were not the heirs of J. W. Broadway, deceased, under whom they claim an interest in the land. If that finding were correct, there would be no use in remanding the case. But we think that was not an open question.

It appears from the record that in a proceeding in Lenoir Superior Court for partition of a tract of land of J. W. Broadway, deceased, wherein the movers in this proceeding were plaintiffs and E. S. Broadway was defendant, an issue was submitted to the jury as to whether the plaintiffs and defendants were heirs at law of J. W. Broadway and tenants in common of the land; that the response of the jury to the issue was in the affirmative, and partition was ordered, and no appeal was had therefrom. The legitimacy of the plaintiffs was from that time res adjudicata as to all the world. Ennis v. Smith, 55 U.S. 400.

Remanded.

Cited: Marsh v. Dellinger, 127 N.C. 363; Ferrell v. Broadway, ib., 404.

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