| N.C. | Dec 5, 1831
The plaintiff proved that the defendant had admitted that William T. Muse and John Mullen had bought the lot for him, and that he was to have it when he paid the purchase money; that he had complied with this engagement and claimed the lot as his property.
The plaintiff then introduced the record of a suit in equity against John B. Blount, the executor of William T. Muse, in which the plaintiff had obtained a decree for $1,935, and on which, as the plaintiff admitted the executor to have fully administered, a scire facias was ordered to issue "to the heirs and devisees of Muse, by their guardian, John B. Blount." In pursuance of this order a scire facias issued reciting the decree and the descent of lands, and directing the sheriff "to make known to the said John B. Blount, guardian to the heirs of the said William T. Muse, that he appear," etc., which was endorsed "Service accepted. J. B. Blount, guardian of J. B. and W. T. Muse, per Thomas M. Blount." Afterwards an entry was made "that execution issue to "sell the land for the amount of the decree." An execution issued according to this order, and the lessor of the plaintiff purchased at sheriff's sale and took a deed to himself. The plaintiff also proved that John B. Blount was the executor of Muse and guardian to his children, and contended that as the defendant claimed under him, he was estopped to deny his title, and could not set up an equitable defense in this Court. But his Honor being of a different opinion, a nonsuit was entered and the plaintiff appealed. We cannot look into the mere errors in (242) rendering judgment, but only into its regularity according to the course of the court. For if the judgment be regular, however erroneous we may think it is, it has, until reversed, all the power and effect of a judgment. *206
The process of sci. fa. against heirs to enforce a decree in equity against the executor or administrator of the ancestor upon a deficiency of assets, until declared to be improper by this Court, in the case ofJeffreys v. Yarborough (1 Dev. Eq. Cases, 506), a decision in which I did not concur, was the common and ordinary mode of proceeding. We cannot impeach the judgment for that irregularity. It would unsettle too much property. Nor can we impeach it, because a default or judgment by nil dicit was taken against the infant heirs; for this is only error, but does not render the judgment null. The only objection which has the appearance of solidity is, that the defendants, the heirs, were not made parties; and if the fact be so, the judgment is void, for there can be no judgment but against one in court. It is not according to the course of the court to render judgment against one not brought into court. The sci. fa. in this case is not against the proper person. It should have been against the heirs themselves. But when the service was admitted by John B. Blount, the guardian of J. B. and (243) W. T. Muse, we must then consider J. B. and W. T. Muse as in court. For that court was the proper judge. It is so decided, and it cannot be contradicted in this collateral way, whether they were properly in court, whether John B. Blount was their guardian, or whether it was competent for Thomas H. Blount to admit service for John B. Blount, for it is evident that these points were either expressly or impliedly so adjudicated by the court. The court may have erred, and certainly acted very unadvisedly in permitting the executor to defend as guardian, for on his full administration it depended, whether execution was to issue against him or the heirs. The judgment therefore is not void, neither is it taken contrary to the course of the court.
The lot was sold as the property of the heirs of William T. Muse, and it was proved that the defendant declared that Muse and one Mullen purchased it for him, and that when he paid the purchase money it was to be his, and that he had paid the money. The plaintiff showed no conveyance but the sheriff's deed. The defendant showed no title. As to setting up an equitable title, it has been long since exploded for reasons much better than I can give. I can see no reason why, after the declaration that the defendant held under Muse, or that Muse had the legal title, and that he had only an equitable one, when sued by Muse, his acknowledged trustee, or a purchaser under him, that he should put the plaintiff to the proof of that which he had admitted. The adoption of such a rule would destroy all confidence between man and man. It is true that the admission does not give Muse a title, for that would be to give him one by mere parol, but it requires that the defendant should not retain that possession against Muse, which he acquired from Muse in confidence, and as his quasi tenant. After *207 having surrendered that possession he may controvert Muse's title, but he shall not weaken it by setting up a possession thus confidentially acquired. In this case, however, the plaintiff upon this evidence is entitled to recover possession of one-half only, for the defendant obtained it under Muse and Mullen, and the plaintiff represents (244) the former only.
When I say that the scire facias should have issued against the heirs of Muse, and not against their guardian, I do not mean that it must be against the heirs by name, for I think that a scire facias directing the sheriff to make known to the heirs generally, without naming them, would be good.
A judgment is void and confers no rights against any one (wherever and however it may be introduced, either directly or collaterally) when it is taken contrary to the course of the court. It is erroneous when the court mistakes the law and renders judgment for one party, when upon the record it should have been rendered for the other, or rather when a judgment different from the one given should have been rendered, but in that case it is as binding until reversed, as if it were not erroneous.
PER CURIAM. Judgment reversed.
Cited: Skinner v. Moore,