Hare v. . Hollomon, 94 N.C. 14

Shith, C. J.

(аfter stating the facts). We sustain the ruling of the Court as to the admissibility of the record evidence of the proceeding instituted for the sale of the land, and the action of the Court thereunder. Not only do these entries show the special facts which they recite, but by aid of the maxim ovinia pre-sumuntur rite esse acta, they furnish inferential evidence of the regularity of that precedent action, upon which the validity and efficacy of what those entries show to have been done by the Court, were dependent. This rule is indispensable, when, as in the present case, the original papers in the cause have been burned or lost. Some references will serve to illustrate the principle.

In Kello v. Maget, 1 Dev. & Bat., 414, the petition was filed under the Act оf 1830, passed for the relief of such persons as may suffer from the destruction by fire of the records of Hert-ford county, to establish and enforce a guardian bond, in reference to which GastoN, Judge, uses this language: “But it was to be inquired, first, whether such a bond had ever been given; secondly, if given, whether the defendant’s intestate was one of the obligors; and, finally, what were the contracts or terms of the bond. The appointment of Daughtry as guardian, was admitted in the pleadings, and upon that appointment, a legal presumption arose that he executed a guardian bond,, since such a bond is made a pre-requisite to the appointment.”

Again, an entry on the records of the same county Court in these words: “James Clark, guardian for Mason Harrell, Sarah Elizabeth Harrell and James Thomas Harrell, orphans of John T. Harrell, deceased, appeared in opеn court and renewed his bond as guardian, by entering into bond for the sum of $3,000, with W. M. Montgomery and J. B. Hare, sureties,” was held evidence to go to the jury of the existence, execution and tеrms of the bond, against the defendant in Harrell v. Hare, 70 N. C., 658. In a recent case, State v. Glisson, 93 N. C., 506, it is said that the examination of a witness without objection, raises, ordinarily, a pre.-umption that he was properly sworn, because the taking an oath is an indispensable condition to his ‍‌​​​‌​​​​‌‌​‌​‌‌‌​​‌​‌​‌​‌​‌‌​‌‌‌‌‌‌​‌‌​‌​‌​‌​​‌‍giving testimony. The statute made to meet cases like the present, interposes and gives legal force to recitals in reсords, deeds and exhibits, surviving a destruction of the originals.

“ The recitals, reference to, or mention of, any decree, order^ judgment or other record of any court of record of any county in which the court house, or records of said courts, or both, have been destroyed by fire or otherwise, contained, recited or set forth in any deed of conveyance, paper writing, or other bona fide written evidеnce of title, executed prior to the destruction of the court house and records of said county, by any executor or administrator with a will annexed, or by any clerk аnd master, Superior Court Clerk, Clerk of the Court of Pleas and Quarter Sessions, sheriff or other officer, or commissioner appointed by either of said Courts, and authorized by law to execute said deed or other рaper writing, shall he deemed, taken and recognized as true in fact, and shall be prima, facie evidence-of the existence, validity and binding force of said decree, order, judgment or other record so referred to or recited in said deed or paper writing, and shall be to all intents and purposes, binding and valid against all persons mentioned or described in said instrument of writing, deed, &c., as purporting to be parties thereto, and against all persons who were parties to said decree, judgment, order or other record so referred to or recited, and against all persons claiming by, through, or under them, or either of them.” Code, §69.

The next sеction makes deeds of conveyance, ‍‌​​​‌​​​​‌‌​‌​‌‌‌​​‌​‌​‌​‌​‌‌​‌‌‌‌‌‌​‌‌​‌​‌​‌​​‌‍registered according to law, “prima facie evidence of the existence and, validity oí the decree, judgment, order or other record upon which the same purports .to be founded, without any order or further restoration or re-instatement of said decree, order, judgment or recoi’d, than is contained in this chapter. §70.

The petition of the administrаtor, as shown in the docketing of the cause, is against Joseph P. Bridgers and others, heirs-at-law of John P. Bridgers, and as the married defendant is one, so it is shown on this trial- who were the others, all of whom were the heirs-at-law of the intestate. It is therefore a reasonable inference that the petition did set out the names of the others, as well as the nаme of one of the defendants, to whom as a class the land descended. And the same conclusion is deducible from the order of sale made in pursuance of the application.

The next objection to the proceeding is, that the infant defendants were not served with process, and were not rightfully before the Court, so that the aсtion of the Court is inoperative as to them, and leaves their title undisturbed.

This objection cannot be sustained. Whether served with process or not, there was a guardian ad litem appointed by the Court to defend the interests of the infant heirs, and recognizing this representation, the Court proceeded to adjudicate the cause, the subject mattеr of which and the conversion of the land into assets by an authorized sale, was within the jurisdiction of the Court.

The judgment, if irregular, was not therefore a nullity, but remained in force until set asidе or reversed by some proper proceeding directed to that end.

Under the former mode provided for the creditor to subject the lands of his debtor to the payment ‍‌​​​‌​​​​‌‌​‌​‌‌‌​​‌​‌​‌​‌​‌‌​‌‌‌‌‌‌​‌‌​‌​‌​‌​​‌‍of the debt, after the ascertained deficiency of the personal estate, by the issue of a seire faeias against the heirs or devisees, the process did not issue against thе heirs, but service was admitted by the guardian, and the Court held that the infants were in Court, and assigned as the ground of the ruling, that the Court so deciding was the proper judge, and that the recоrd could not be contradicted in the collateral way proposed. White v. Albertson, 3 Dev., 241-243.

In Matthews v. Joyce, 85 N. C., 258-264, the Court say, “a different practice has long and almost universally prevailed in this State, and this рower of appointment, (of a guardian ad litem to infant defendants), has been generally exercised without the issue of process, for the reason that no practicаl benefit would result to the infant from such service on him, and the Court always assumed to protect the interests of such party, and to this end committed them to the defence of this sрecial guardian,” and cases are referred to in support of the practice.

In Larkins v. Bullard, 88 N. C., 35, certain infants were directed to be made parties, but were not served with рrocess, nor was any guardian ad litem appointed for them, nor did their names anywhere appear in the record, and it was held that the judgment rendered against them was irregular, and the Court had the power to set it aside, RufpiN, J., saying, “it would be a plain violation of right, to leave the judgment standing so as to operate as an estoppel upon these infants, when the Court can see that no real defence was ever made for them.” Agаin : In reference to this point, MekjrimoN, J., in England v. Garner, 90 N. C., 197-201, uses this language in answer to a suggestion that a judgmeut against a defendant not of full age was void: “If he was an infant, this fact did not render ‍‌​​​‌​​​​‌‌​‌​‌‌‌​​‌​‌​‌​‌​‌‌​‌‌‌‌‌‌​‌‌​‌​‌​‌​​‌‍the judgment аs to him absolutely void. It was irregular, and might upon proper application have been set aside, not however to the prejudice of bona fide purchasers without- notice,” citing White v. Albertson, supra; Williams v. Harrington, 11 Ired., 616; Marshall v. Fisher, 1 Jones, 111; Freeman on Judgments, §513.

In Day v. Kerr, 7 Mo., 426, it was held that, where infant defendants were not served with process, but the record showed that, upon their motion, a guardian ad litem had been appointed who proceeded in the cause, the deсree against the infants was not void and could not be collaterally impeached.

In answer to the suggestion that the interests of the infants were left unprotected, we but repeat the words used in response to a similar objection in Howerton v. Sexton, 90 N. C., 581-586. “It does not appear that any successful resistance could have been made to the prayеr of the petition, or that any injury accrued thereupon to any of the defendants. His silence then, we cannot even now sec to have been to their prejudice, or to involve any dereliction of duty to them.” Nor, we may add, does it appear that the property did not bring its full value, or that any surplus would be left after payment of the intestаte's debts, to come to the heirs. We should be reluctant to disturb titles acquired under the former practice, universally recognized and acted on in this State, thus introducing distrust and confusion in regard to the tenure of estates and the loss of confidence in the judicial action of (he Courts, the mischievous results of which can hardly be foreseen, and vve could do so only under clear and cogent convictions of error entering into them. We may add that the General Assembly seemed to have anticipated similar contrоversies and to have furnished relief in the two enactments of 1879, eh. 257, and of 1880, ch. 23, embodied in The Code, §387. This legislation declares valid and binding decrees rendered where infants were not, as if they had been, served with process, except when fraud enters into and infects them.

It must be declared that there is no ‍‌​​​‌​​​​‌‌​‌​‌‌‌​​‌​‌​‌​‌​‌‌​‌‌‌‌‌‌​‌‌​‌​‌​‌​​‌‍error, and the judgment is affirmed.

Yo error. Affirmed.

Case Details

Case Name: Hare v. . Hollomon

Court Name: Supreme Court of North Carolina

Date Published: Feb 5, 1886

Citation: 94 N.C. 14

Court Abbreviation: N.C.