The will of O. B. Cox, deceased, did not confer on the Greensboro Loan & Trust Company, the executor, the power of sale of the lands devised; this will, however, did enjoin upon the executor a duty to carry out its provisions, and it directed the “apportionment” of this estate, both real and personal, to be made by. the president, secretary and treasurer of the Greensboro Loan & Trust Company, providing that one other, a disinterested party, might be called in by these officers of the executor, if they desired any assistance. In the suit in Randolph Superior Court, instituted by the executor against the devisees of O. B. Cox for a construction of this will and for advice as to the proper administration of said estate, a decrеe was rendered in 1913, wherein it was adjudged that the executor should distribute said property in accordance with this decree. This decree determined the intention of O. B. Cox to be that his wife, Sarah E. Cox, and his children, other than John Clyde Cox and Lewis Tax Cox, should first be made equal with A. E. Cox in the distribution of his estate out of the real and personal property other than his home place and certain personal .effects on the premises, and that the balance of his real and personal property should be equally divided among his wife and children, and that if John Clyde Cox and Lewis Tax Cox failed to comply with certain conditions named in the will, then the personal property and real estate given to Sarah E. Cox for life should be divided equally among all the children of O. B. Cox, deceased, or their heirs, at her death. The testator desired that these officers of his executor, whoever they might be at the time of his death, should make this “apportionment” by actual partition, if practicable. It is also clear that he did not intend to require them to make an actual partition if such could not bе had without injury to the several devisees, or any of them. He desired equality in this division on the basis named in his will. The testator named for this important duty those parties who had been elected officers of the Greensboro 'Loan & Trust Company. The “apportionment” was a duty of the executor to be performed, if actual partition
Tbe executor desiring to- perform its duty, as set out in tbe will, and as determined in tbe decree rendered by tbe Superior Court of Randolph County construing tbe said will and advising tbe executor, applied to tbe clerk of tbe Superior Court of Randolph County in 1917, upon petition in due form, asking for partition by sale in order to complete tbe settlement of tbe estate committed to it by tbe will of O. R. Cox. In due course an. order of sale was entered, executed, and title made to plaintiff for tbe locus in quo upon payment of bis bid, which was a fair value for tbe property.
Tbis partition proceeding is attacked in tbe instant case by tbe defendant, as noted above.
Tbis attack on tbe judgment in tbe partition proceeding is indirect and collateral. Only.void judgments are subject to such an attack. Moore v. Packer,
Tbe invalidity must appear affirmatively, either on tbe face of tbe record or in one of tbe accepted ways, in order to permit a successful collateral attack. McKellar v. McKay,
There is, in tbis State, one apparent exception to tbe rule set forth in these cases as applied to probate courts. If tbe person alleged to be dead is not, in fact, dead, tbis prevents tbe probate court from granting letters of administration or administering bis estate. Springer v. Shavender,
A void judgment is not a judgment and may always be treated as a nullity. It lacks some essential element; it has no force whatever; it may he quashed ex mero motu. Stallings v. Gully,
A lack of jurisdiction or power in the court entering the judgment always avoids the judgment. This is equally true when the court has not been given the jurisdiction of the subject-matter, or has failed to obtain jurisdiction on account of a lack of service of proper process. Johnson v. Whilden,
In Card v. Finch,
In Card v. Finch, supra, the authorities are collected and distinguished with clearness and with a full and proper regard of the right of all citizens to “due process of law.” Mr. Justice Connor was entirely familiar with this doctrine and he believed and trusted in it as a basic principle of law and government.
There is a wide distinction (which is especially prominent in deter-' mining the methods of attack) between judgments that are void and judgments that are only voidable. The former yield to collateral attack, but the latter never yield to a collateral attack. It requires a direct attack to set aside or correct a voidable judgment. McKeller v. McKay, supra; Harrison v. Hargrove, supra; Pinnell v. Burroughs,
Judgments that are voidable for some irregularity, until impeached or set aside, according to the recognizеd methods of direct attack, estop all parties thereto. A void judgment has not the essential virtue of a judgment and it has no force to estop any person. It does not obligate the parties thereto to protect the rights of subsequent purchasers who claim under such judgment. Springer v. Shavender, supra; Card v. Finch, supra; Pinnell v. Burroughs, supra.
The defendant challengеs the validity of the partition proceeding in Randolph County in 1917 under which the plaintiff claims title, for that the locus in quo is situated in Guilford County, contending that, at most, the clerk had jurisdiction only of the lands in Randolph County, and that he could not take jurisdiction over, any lands in Guilford County unless the Guilford lands were either a part of a tract lying in Randolph and Guilford, or in case the Guilford land adjoined the Rаndolph land.
This question is not a question of. jurisdiction under our present statute, but is only a question of venue. This question was decided against the defendant’s contention in In re Skinner's Heirs,
In fact, this exception, presenting only a question of venue, is open only to the parties to the suit by proper motion, in apt time, to change the venue. It is not vital, even if the venue had been improperly laid. The venue was properly laid in Randolph County under the express terms of the statute (C. S., 3214). Thames v. Jones,
Yenue and jurisdiction must be considered in relation to the remedies provided for removal to the proper county. The Revisal of 1905, with its many provisions, was one act. So was the Consolidated Statutes enacted by the Legislature in 1919. It is proper to consider all the provisions of the Consolidated Statutes as one and the same statute, and
A like rule of • construction was applied in Sanderson v. Sanderson,
Yenue is not i jurisdictional and may be waived, and cannot be tested by demurrer, but by motion m the cause. Allen-Fleming Co. v. R. R.,
Therefore, construing C. S., 469, 470 and 3214, in pari materia, and in the light of the foregoing decisions, venue cannot be jurisdictional and it may always be waived. Pleading to the merits waives defective venue. Brown v. Harding,
Chapter 62, Public Laws, Extra Session, 1924, amended C. S., 3214, by making express provision against a likе contention hereafter. By so doing, it did not declare the law to have been otherwise theretofore. It was simply declaratory and did not create a new rule.
Therefore, we conclude that the defendant has no power to raise the question of venue affecting the commissioner’s deed in plaintiff’s chain of title, and that the venue, if propеrly challenged, was correctly laid, and if not, that the parties waived the same by pleading to the merits. The venue of this partition proceeding was properly laid in Eandolph County, not only as to the lands in Eandolph County, but as to those in Guilford and Davidson, as well.
The defendant again challenges the validity of this partition proceeding in Eandolph County, for that the petitioner therein is not a tenant in common, and that the petition calls for the exercise of dis
Clerks of the Superior Court have, by virtue of C. S., 1, probate jurisdiction, such as was formerly exercised by the probate judge. Edwards v. Cobb,
By statute, C. S., 2, the clerk of the Superior Court who first gains and exercises jurisdiction in probate matters acquires sole and exclusive jurisdiction over decedent’s estate. The clerk of the Superior Court of Randolph County had domiciliary jurisdiction of the estate оf O. R. Cox, deceased. The will was probated there; the situs of the personal property of said estate was there, and a considerable portion of the real property of said estate was in Randolph County. The executor had a duty to perform in the settlement of the said estate, in the “apportionment” or distribution and partition of the samе, so as to carry out the express directions of the testator and to effectuate his intent, as adjudged by the Superior Court of Randolph County in 1913, and from the terms of the said will it was necessary to make this “apportionment” of the estate as a part of the settlement imposed upon his executor. Therefore, the resort to the probate court of Randolph County was within the probate jurisdiction of said court. It was necessary in the settlement of the estate of O. R. Cox. A petition to sell lands to pay debts is no more a duty of the executor when such debts exist and cannot be paid out of the personal estate than is the requirement to make the distribution of the property in equality as directed by the testator in the instant case. Hyman v. Jarginan,
Probate courts in other jurisdictions are held to have the power to partition lands according to the will. 15 C. J., 1016; Blackwell v. Blackwell,
Probаte jurisdiction means the exercise of the ordinary power of what, ex vi termini, is generally understood to be the authority of courts of that name, and includes the establishment of wills; the settlement of decedents’ estates; the supervision of the guardianship of infants; the control of their property; the allotment of dower and other powers pertaining to this subject. Chadwick v. Chadwick,
A petition for partition is a special proceeding which is within the original jurisdiction of the probate court. Wahab v. Smith,
A partition рroceeding is governed by the rules applying in equitable cases, and a plaintiff is not entitled to take a voluntary nonsuit. The defendants are entitled to partition, although the plaintiff may, after the proceeding is instituted, find that he is not entitled to partition, or may not desire it, if entitled. Haddock v. Stocks,
In the partition proceeding attacked in the instant case, each defendant joined in the prayer for partition by sale.
We see no defect in the partition proceeding, which was conducted with great skill and care in all respects in accordance with the rights of the parties, as fixed in the will of O. R. Cox. This was a necessary proceeding in the settlement of the estate of O. R. Cox. The venue was correctly laid. The clerk of the Superior Court of Randolph County had jurisdiction to enter the orders and confirm the sale. The commissioner’s deed had the effect to vest a fee-simple title in the purchaser.
Tbe only other contention set up by tbe defendant is tbat tbe foreclosure of tbe E. D. Steele mortgage was invalid, for tbat tbe mortgagе sale under power was bad at tbe Wachovia Bank & Trust Company building, in tbe city of High Point, instead of at tbe courthouse door in Greensboro. Tbe mortgage did not fix tbe place of sale, but authorized a sale under tbe power.
It is in accord with tbe weight of authority to bold tbat, when a mortgage or deed in trust contains no stipulation as to tbe place of sale, but сonfers tbe power of sale, this vests in tbe mortgagee or trustee tbe sound discretion to select tbe place of sale so as to conserve and promote tbe interest of all parties. His duty requires tbat this selection of a place must be fairly and prudently exercised. A failure to obtain an adequate price is usually fatal to bis selection. Jоnes on Mortgages (6 ed.), sec. 1846; Wiltsie on Mortgage Foreclosure, vol. 2, 1317, sec. 938; Meier v. Meier,
Tbe facts admitted in tbe instant record are tbat Hedgecock, who bad becоme mortgagor on account of an assumption of tbe mortgage indebtedness, as well as tbe other parties interested, were present at tbe sale, which was open and fair, and made no objection thereto, but acquiesced therein, and tbat tbe land was sold for a fair and adequate value. Upon these facts, Hedgecock is estopped to question this sale, and tbe title is good. Jenkins v. Daniels,
Upon the facts admitted in the instant record, the title offered by plaintiff to the defendant is free from defects, and the court was in error in rendering judgment for the defendant.
To the end that judgment may be entered for the plaintiff and such other proceedings may be had herein, in accordance with this opinion as the parties may be advised; let it be entered.
Reversed and remanded.