15 S.E. 2 | N.C. | 1892
The original declaration was filed in 1852 in the Superior Court of GRANVILLE, and, issue being joined, was removed to WARREN, where several ineffectual trials were had. In 1878 there was a verdict and judgment for plaintiff, but it was subsequently ascertained that the defendant at that time was dead.
The plaintiff sued out a writ of possession in 1882, and immediately the heirs at law and the others claiming under the defendant brought an action to restrain the execution of the writ and to set aside the judgment. This action was decided against the plaintiff therein (Knott v. Taylor,
It is admitted that the said John Washington went into the possession of the locus in quo immediately after the alleged sale by the said sheriff of Granville County and alleged purchase by him in 1826, and that his widow and devisee took possession upon the death of her husband and so remained until she conveyed to defendant Gooch in 1848, who remained in such possession until the service of the declaration in this action.
The defendants, for the purpose of sustaining their plea since the last continuance, showed, in evidence, against plaintiff's objection —
1. The transcript of the record of the court of equity, as set up in their answer.
2. Deed from Stephen S. Parrott, administrator de bonis non of John Walker, to William Pannill, Jr., Nancy Pannill, and Elizabeth Otey, heirs at law of William Pannill, deceased, bearing date 21 April, 1857; and mesne conveyance from them to defendants.
The court instructed the jury that the plaintiff was not entitled to recover. To this instruction the plaintiff excepted.
The verdict was returned for the defendants, and judgment was (390) rendered thereon by the court; from which plaintiff appealed. The purchase money having been paid in full by William Pannill, the heirs at law of the vendor were naked trustees of the legal title for his benefit. In a court of competent jurisdiction, in a proceeding to which the heirs at law of the vendor and the vendee *274 were parties, it was adjudged in 1803 that the former execute title to the said vendee. With that decree in force and unimpeached, it is clear that the heirs at law cannot take advantage of their own wrong in not having executed the decree to recover from the beneficial owner the land for which it is adjudged that he had already paid in full, and which their ancestor had covenanted to convey to him whenever such payment had been made.
By virtue of ch. 478, Laws 1797, Rev. Code, ch. 46, sec. 37 (and substantially reenacted in The Code, sec. 1492), the administrator debonis non of the vendor subsequently in 1855 registered the bond to make title in the proper county, and conveyed the legal title to Pannill's heirs at law, who, in turn, in 1857 conveyed to Gooch, then the defendant in this action. This, by virtue of the statute, passed, as against the plaintiff, the naked legal title, which alone she could claim as an heir at law of the vendor. This was set up as a plea since last continuance, and was properly allowed by the court, since it could not have been pleaded when the answer was filed, and the defendant was entitled to the benefit of it. In Johnson v. Swain,
It is immaterial to consider what interest passed to Washington under the execution sale against Pannill in 1806, subsequent to the decree of 1803, but prior to the act of 1812, authorizing the sale of trust estates — which point was somewhat considered when this case was here the second time (in 1857),
The judgment taken against Gooch in 1878, after his death, was irregular and voidable, and was properly set aside by a motion in the cause. It is objected that the motion could not be made by the mover, *275
who was not a party to the original action, but who had acquired his interest in the subject-matter of the suit under Gooch since action begun. But it has been held in a proceeding between these same parties, Knott v.Taylor,
An irregular judgment can be set aside upon motion within (392) any reasonable time. Harrell v. Peebles,
The judgment was taken against Gooch in September, 1878, after his death. A writ of possession was sued out thereon in 1882, and immediately the present mover in this cause instituted proceedings to restrain the plaintiff. At Spring Term, 1888, of this Court, it was decided that the mover had mistaken his remedy, which should be by a motion in the cause.Knott v. Taylor, supra. At the first term thereafter of the court below, in September, 1888, this motion in the cause to set aside the judgment was made. It was in apt time. There has been no acquiescence or sleeping on his rights by the party aggrieved. It is not shown that he had any knowledge of the judgment till plaintiff sued out his writ of possession in 1882, and it is not probable that he had.
This is the fifth time this matter, which has been in litigation more than forty years, has been in this Court. The defendants, and those under whom they claim, have been in continuous and unbroken possession of the premises for ninety years. Eighty-nine years ago a decree was made in a cause pending between the parties under whom the plaintiff and defendants, respectively, claim, adjudging that those whose title and possession the defendants hold had paid in full for the premises, and adjudging that the plaintiff's ancestor execute title to the same.
This action, having begun long before the adoption of the present reformed procedure, our old friends, John Doe and Richard Roe, figure as parties to the action. It is probably their last appearance upon the legal stage in this State. Originally introduced as a means of evading the excessive technicalities of the old real (393) action, the disappearance of the fiction marks a still more notable advance in the progress and simplification of the methods of legal procedure.
No error.
Cited: Batts v. Pridgen,