69 S.E. 49 | N.C. | 1910
On her application, Mary R. Hall was made a party, and she claimed the title in fee to the land described. His Honor made the following findings of fact:
1. That on 14 February, 1870, Charles J. Williams and others conveyed the lands described in the complaint to the defendant, Mary R. Hall, by deed which is registered in Book "O," No. 3, page 214, of the register's office of Cumberland County.
2. That on 22 December, 1887, the said Mary R. Hall and her husband, Thomas G. Hall, conveyed said lands to E. J. Lilly, now deceased, by mortgage deed to secure a debt recited therein, which said mortgage deed is registered in Book "I," No. 3, page 384, in said office.
3. That thereafter, default being made in the payment of the debt secured in said mortgage, an action was instituted in the Superior Court of said county by H. W. Lilly and R. T. Gray, executors of E. J. Lilly, against the said Thos. G. Hall and wife, Mary R. Hall, to foreclose said mortgage, and at September Term, 1899, of said court, a decree was rendered therein condemning said land to be sold, appointing J. C. *208 MacRae, Jr., commissioner, to make such sale; that said land (255) was sold by said MacRae under said decree and report thereof was duly made, and at February Term, 1900, of said court, said sale and said report were duly confirmed, and it was ordered that the said MacRae execute deed, conveying said land to H. W. Lilly and R. T. Gray, executors of E. J. Lilly; they being the purchasers at said sale; that the summons in said action has been lost, but the decree rendered therein at September Term, 1899, adjudged that the said Thomas G. Hall and Mary R. Hall had been served with summons.
4. That pursuant to said final decree, the said J. C. MacRae, Jr., commissioner, on 24 February, 1900, conveyed said lands to said H. W. Lilly and R. T. Gray, executors of E. J. Lilly, by deed which was registered in said county in Book "G," No. 5, page 576.
5. That on 2 January, 1905, said H. W. Lilly and R. T. Gray, executors of E. J. Lilly, conveyed said lands to C. H. McLauchlin, by deed which was registered in said county in Book "Y," No. 5, page 452.
6. That on the said 2 January, 1905, the said C. H. McLauchlin and wife conveyed said lands to H. W. Lilly and R. T. Gray, executors of E. J. Lilly, by a deed of mortgage to secure a debt recited therein, which deed is registered in said county in Book "Y," No. 5, page 453.
7. That thereafter, default having been made in the payment of the debt secured in the said mortgage, said lands were sold under the power contained therein, at which sale John Underwood became the purchaser, and pursuant to said power, on the 26th day of August, 1907, said H. W. Lilly and R. T. Gray, executors of E. J. Lilly, conveyed said lands to said Underwood by deed which was registered in Book "M," No. 6, page 414, in said office. This finding is made subject to exceptions of the defendants which will appear in case on appeal.
8. That on 5 September, 1907, said John Underwood and wife conveyed said land to the plaintiff, H. F. McDonald, by deed which is registered in Book "M," No. 6, page 416, in said office.
Upon the facts as found by him, his Honor rendered judgment that the plaintiff McDonald was the owner in fee of the land and (256) entitled to the possession, subject only to his mortgage to his coplaintiff, John Underwood. From this judgment, Mary R. Hall appealed. The errors assigned by her are, (1) the reception in evidence of the mortgage deed from Charles McLauchlin and wife to H. W. Lilly and R. T. Gray, executors of E. J. Lilly, given to secure balance of purchase money, upon the ground that the private examination was not taken by a proper officer using a proper seal, (2) to the final decree and records of the action to foreclose the mortgage of Thos. G. Hall and wife (the appellant, Mary R. Hall), covered by findings 3, 4, 5, on the ground that summons was not in fact served, (3) that the *209
sale for foreclosure under the McLauchlin mortgage was prematurely made. Neither Hoffman nor the McLauchlins appealed from the judgment.
After stating the case: The exceptions noted to the foreclosure action against Thos. G. Hall and wife, Mary, upon the ground that summons was not in fact served, can not be sustained in the face of the recital in the judgment or decree in that action that personal service was made. This has been uniformly ruled by this Court, the proper proceeding being a motion in the original action to set aside the judgment, and not by collateral attack. Bailey v. Hopkins,
Affirmed.
Cited: Cooke v. Cooke,