61 S.E. 57 | N.C. | 1908
CLARK, C.J., dissenting, arguendo.
This action is prosecuted by the feme plaintiff for the purpose of quieting and removing a cloud from the title to her separate real estate. The undisputed facts as disclosed by the record are: The feme plaintiff was, on 21 February, 1895, the owner of the real estate described in the complaint, being a lot in the city of Fayetteville. The deed under which she claims recites a consideration of $150. On the said day Poe Co. filed in the office of the clerk of the Superior Court of Cumberland County an itemized account reciting that "Mr. L. A. Rutherford bought of Poe Co." certain brick, the price whereof aggregate $45. He also flied notice of lieu "against the said L. A. Rutherford and Nancy A. Rutherford for material furnished on the dwelling of said L. A. and Nancy A. Rutherford, as per bill of particulars herewith filed and attached." On 21 March, 1895, W. D. Gaster, justice of the peace in Cumberland County, issued a summons directed to the sheriff of Robeson County in behalf of Poe Co. and against "L. A. Rutherford and Nancy A. Rutherford," commanding them to appear at his office in Fayetteville 4 April, 1895. The clerk of the Superior Court of Cumberland County duly certified that Gaster was a justice of the peace in said county. The summons was served on L. A. and Nancy A. Rutherford by the sheriff of Robeson County. On the return day judgment was (255) entered by Gaster, justice of the peace, against defendant for $45, interest, and costs, no appearance having been made. It was also, adjudged that the judgment constituted a lien "on a house and lot and material," etc. A transcript of this judgment was docketed on the judgment docket of the Superior Court of Cumberland County and execution issued thereon, directed to the sheriff of said county, on 1 October, 1895. The sheriff made return on said execution that he had sold the lot at public auction to N.W. Ray for the sum of $75. which he applied to the payment of the execution and cost, and that he paid the balance on another execution against defendants. The sheriff executed a deed to the purchaser. At the time the lien was filed, and at all times since, the feme plaintiff was a married woman. It does not appear from the *189
record in what county she and her husband resided at the time the summons was issued and served. She has been in the continuous possession of the lot since the sale by the sheriff. Mr. Ray, the purchaser, died, devising the lot to his wife, one of the defendants herein. The feme plaintiff alleges that the judgment of the justice and the sale were void, because she was a married woman. She demands judgment that the deed be declared void, etc. The only issues submitted to the jury were directed to the question of the feme plaintiff's marriage and her ownership of the lot. His Honor directed the jury, if they found the facts to be as testified to by the witnesses, to answer both issues "Yes." Defendants excepted. Judgment on the verdict, and appeal.
The action is brought pursuant to the provisions of chapter 6, Laws 1893; Revisal, 1589. This statute was intended, and properly framed for that purpose, to permit any person to institute an action against any other person claiming an adverse (256) interest in land to have his title quieted and any cloud thereon removed. The purpose of the statute was to avoid the difficulties encountered by plaintiff in Busbee v. Lewis,
It is suggested by the learned counsel for defendants herein that the action to enforce a lien for material furnished for building is a proceeding quasi in rem and that the general statutory provisions regarding jurisdiction of the person do not apply. In Smaw v. Cohen,
The statement of the case in McMinn v. Hamilton,
We note that the "bill of particulars" filed shows no liability of thefeme defendant, and that the plaintiffs did not prove their claim as required by Rule 8, section 1464, Revisal, which provides "that when a defendant does not appear and answer the plaintiff must still prove his case before he can recover." It may be that the law would presume that this was done or that the failure to do it rendered the judgment erroneous or irregular, but not void. In view of the fact that upon docketing a transcript of the judgment in the Superior Court a lien upon land is acquired and title passed under execution sale, it would seem that for the *192 protection of purchasers jurisdictional facts should be made to appear upon the transcript. It is uniformly held that if such facts appear on the record of judgments rendered by courts of general jurisdiction the purchaser is not required to look further, but is protected. Here the jurisdictional facts do not appear upon the justice's record. On the contrary, it does appear that the justice had no jurisdiction. Upon an inspection of the entire record we concur with his Honor's ruling. There is
No error.