76 S.E. 217 | N.C. | 1912
The facts are sufficiently stated in the opinion of the Court by MR. JUSTICE WALKER. This action was brought by the plaintiffs to recover the possession of the land described in their complaint, it being a part of the "Culpepper place," formerly belonging to the late Nicholas (341) W. Arrington, who, by his will, devised it to his daughter, Tempie Ann Harris, for life, with remainder to her heirs, who are the plaintiffs. Mr. Arrington died in the year 1865, insolvent. He owed a very large sum, which his assets were wholly insufficient to pay. He appointed L. N. B. and L. F. Battle his executors, who qualified as such, and in 1868 commenced a special proceeding before the clerk of the Superior Court for a sale of his realty to pay his debts. The land was sold, including the "Culpepper place," and the sale was confirmed as to all of it except that place, and a resale ordered as to it. One of the executors having resigned, and the other having been removed, the Hon. B. H. Bunn was appointed administrator de bonis non, with the will annexed. Under the order of the court just mentioned, he sold the land, and it was purchased by Mrs. Tempie Ann Harris for $2,010, and she assigned her bid to Enos Ward and his associates, and the deed for the same was made to them. The defendants claim, by mesne conveyances, under them. In a second cause of action, the plaintiffs seek to determine adverse claims to real property, or to quiet their title, by removing a cloud therefrom. Their right to relief, as seems to be conceded by all the counsel, depends upon the validity of the proceeding for the sale of the lands of Mr. Arrington, to which we have referred.
Plaintiffs attack these proceedings upon the ground that they were not parties thereto, and therefore are not bound by the judgment therein *278
rendered; and if the fact be true, or, in law, they are not to be regarded as parties, their reduction follows inevitably. Stancill v. Gay,
The record of the proceeding for the sale of the land, which was made a part of the same, discloses that a summons was issued, but not served, but that the defendants named in the writ came in and answered. This is equivalent to appearance, and waives the service of (342) process, the object of which is to bring the defendants into court and to subject them personally, by service of the writ, to its jurisdiction. If they come in voluntarily and appear or answer, the same result is accomplished. A general appearance cures all defects and irregularities in the process. Wheeler v. Cobb,
The complaint was filed in due and proper form, and, as appears from the judgment roll, a paper purporting, in form and substance, to be the joint answer of the defendants, was also filed. It was not signed, but so far as the record of the proceedings shows, it was on file as a paper in the cause, and remained on file, as part of the judgment roll, for many years. The court recognized it as the answer, for it is recited in the judgment itself that the case was heard upon "complaint and answer," and that they formed the basis of the judgment, and the facts therein stated were those upon which the court acted. Howerton v. Sexton,
It is also objected that there was no personal service of the summons upon the plaintiffs, who, at the time, were infants, and no order appointing a guardian ad litem to defend the proceeding in their behalf. The *279
omission to serve the infants with process is cured by Revisal, sec. 441, as we will hold that they were represented by a guardian ad litem. It sufficiently appears, on the face of the record, that B. H. Sorsby, Jr., joined in the answer as guardian ad litem of the minor (343) children of Tempie Ann Harris, who herself united with the other defendants in the answer, and it also appears that the court recognized B. H. Sorsby, Jr., as guardian ad litem for the infants, it having acted upon the answer as a pleading in the cause, upon which the judgment was in part based. In Sumner v. Sessoms,
We have held in a series of cases that the court will not vacate an irregular judgment against an infant as of course, and it will not do so when it appears from the record or otherwise that the infant has suffered no substantial wrong, and the rights of innocent third parties, who have purchased for value and without notice, have intervened and will be prejudiced. Syme v. Trill,
This is an action to quiet title by declaring void the judgment, sale, and conveyance under which defendants deraign their title, and in that view of it the plaintiffs cannot collaterally assail the judicial proceedings for mere irregularity. It is not void on its face, as we have shown. If they wish to attack it for irregularity, it must be done by motion in the original cause. Rackley v. Roberts,
We may well repeat here what is said in Rackley v. Roberts, 147 N.C. at p. 207, with respect to the facts of that case, which is much like this: "While it may not be necessary to the decision of this appeal, as we view it, to consider what may be the rights of Mrs. Roberts, as an innocent purchaser, for all the facts in regard to that question are not now before us, it may be well to refer again to the general doctrine settled by this Court, to the effect that, when there is a purchase under an order or judgment, the purchaser need only inquire if upon the face of the record the court apparently has jurisdiction of the parties and the subject-matter, in order to be protected, provided he buys in good faith and without notice of any actual defect." The decision in that case was followed by a motion in the cause to set aside the judgment for irregularity, upon the ground that process had not actually been served upon one of the parties, and with reference to somewhat similar facts in that case (Glisson v. Glisson,
As plaintiffs are remaindermen, a suit to recover possession of the land, as in one aspect this one is, would not be affected by the statute of limitations until after the expiration of the life estate (Joyner v.Futrell,
In this case, it appears that the grounds upon which the prayer for relief is predicated are purely technical, and not at all meritorious. The estate of Mr. Arrington was hopelessly insolvent, his indebtedness far exceeding the value of the estate left to him after the ravages of the war. The last sale of the Culpepper place was made by Mr. Bunn, the administrator, in October, 1877 — thirty-five years ago — and defendants having purchased in good faith and for full value, as the court found and adjudged, entered into possession and improved the land and established their home upon the premises. Plaintiffs had no meritorious defense to the proceeding in which the sale of the land was decreed, and *283 if for any cause, sufficient in law, the judgment should be set aside, the land would have to be resold to pay the testator's debts, the amount of which has been greatly increased by the accumulated interest. Besides, there is nothing to show that the interests of the minors were not properly safeguarded in the proceeding. Their mother, who had the life estate in the land under her father's will, seeing that the land must inevitably be sold to pay his debts, submitted to the decree, (348) as did all the other heirs, who had interests more valuable, perhaps, as would appear, than those of the infants, as their estates had vested in possession. If any case should be governed by the strict application of the principle we have stated, this is the one. It would be vain, indeed, if we should disturb the judgment under such circumstances, if not most unjust and inequitable.
The case was considered and decided by the learned judge upon the record alone, a bare inspection of it, as upon the plea of nul tiel record, and even in that view of it, we conclude that there was error. As there is no ground upon which the plaintiffs can succeed in the action, it should have been dismissed, and that course will be taken in the court below.
Reversed.
Cited: Brown v. Brown,