92 S.E. 259 | N.C. | 1917
The action was brought to remove a cloud from the title to land which plaintiffs allege they own. It is stated in the complaint that Alexander Thompson died in 1839, in Mecklenburg County, without leaving a will, and that defendants in 1912 produced before the clerk of the Superior Court of Mecklenburg County a paper-writing purporting to be his will, and caused the same to be probated by said clerk in common form. That Alexander Thompson never signed or executed the said paper as his will, *516 and no proof was offered as to his handwriting, and that the proofs before the clerk were otherwise irregular and defective.
Defendants claim title to the land under the will which plaintiffs allege clouds their title to the same, as the will which was (467) probated in Mecklenburg County, where the land was situated, at the death of Alexander Thompson, but since added to Union County by statute, is not his will and was not properly probated. They pray that the will and probate be set aside and annulled as a cloud on their title.
The court overruled the motion and the demurrer, and defendants appealed.
It may be safely assumed that the following doctrine has been established by the courts with reference to the conclusiveness and binding effect of judgments, so long as they remain in force and unreversed. Where a judgment rendered by a domestic court of general or superior jurisdiction is attacked in a collateral proceedings there is a presumption, which can only be overcome by positive proof, that it had jurisdiction both of the persons and the subject-matter, and proceeded in the due exercise of its jurisdiction. "Although the court may be an inferior or limited tribunal, yet if it has general jurisdiction of any one subject, its proceedings and judgments in respect thereto will be sustained by the same liberal presumptions which obtain in the case of Superior Courts." 1 Black on Judgments (2 Ed.), sec. 282; 23 Cyc., 1078, 1082; Moffitt v. Moffitt,
As jurisdiction is presumed, at least prima facie, any acts or omissions affecting the validity of the proceedings and judgment must be affirmatively shown, and unless the want of jurisdiction, either as to the subject-matter or the parties, appears in some proper form, the jurisdiction and regularity of the proceedings leading up to the judgment will be supported by every intendment. 11 Cyc., 692, 693. The principle *518
(469) was well expressed by one of the courts: "If the court had jurisdiction of the subject-matter and the parties, it is altogether immaterial how grossly irregular or manifestly erroneous its proceedings may have been; its final order cannot be regarded as a nullity, and cannot, therefore, be collaterally impeached. On the other hand, if it proceeded without jurisdiction, it is equally unimportant how technically correct and precisely certain, in point of form, its record may appear; its judgment is void to every intent and for every purpose." Sheldon v.Newton,
The presumption, then, being in favor of the will and probate, the burden is upon him who would assail it. He may impeach them directly, but not collaterally. "It is well settled that a judgment or decree (470) admitting a will to probate, when made by a court having jurisdiction thereof, may be attacked only in such direct *519 proceedings as are authorized by statute, and that it is not open to attack or impeachment in a collateral proceeding. More specifically, it is not permissible to collaterally attack such a judgment or decree on the ground that certain errors and irregularities exist, which if shown really to exist would, at the most, make the judgment only voidable, such as an alleged fact that the persons interested were not all duly cited or given notice or made parties; that the probate was granted on insufficient proof, as where it was granted on production of a copy instead of an original will; that the execution of the will was defective and insufficient; that the order admitting the will to probate does not use the exact language of the statute; that there was no formal entry of the judgment; that the decree contained a translation of the will into English, or that the jury were erroneously instructed and returned a verdict contrary to the evidence; but when irregularities of this nature are alleged in a collateral proceeding, the court will indulge in liberal and conclusive presumptions in favor of the sufficiency of the record and proceedings, such as a presumption that proper and sufficient notice was given; that the petition for probate was properly filed; that orders continuing the hearing were regularly made; that the execution, attestation, and proof of the will were sufficient; that the testator possessed testamentary capacity, and that the instrument probated is sufficient to pass such property as it purports to pass. It is even held that fraud is not a ground of collateral attack, as the identity, validity, and sufficiency of the instrument propounded as the last testamentary act of the deceased is the very question determined; and while a judgment or decree relating to the probate of a will is open to collateral impeachment, when it has been rendered by a court which was wholly without jurisdiction, the determination, by the officer or court probating the will, that the requisite jurisdictional facts, such as the residence of the testator at the time of his death or the situation of his property within the county, is conclusive and not open to collateral attack." 40 Cyc., 1377, 1378. It is said in 1 Black on Judgments (2 Ed.), sec. 250: "The well recognized rule is that the judgments and decisions of an inferior court can in no case be assailed indirectly on account of errors or irregularities not affecting the jurisdiction." And again: "On similar principles, an order or decree of a surrogate, or probate or orphans' court, jurisdiction having attached, is not examinable in any collateral proceeding. In fact, the orders and judgments of probate courts concerning matters over which they have jurisdiction are no more open to collateral attack (471) than are the orders and judgment of other courts of general jurisdiction; they must have accorded to them the same intendments and favorable presumption which attend the judgments of courts of general *520 common-law jurisdiction. This rule applies to an order admitting a will to probate."
These established rules of the law with respect to the judgments of probate courts have been adopted by us. In London v. R. R.,
In this case it appears by presumption and otherwise that Alexander Watkins, who was domiciled in Mecklenburg County, died there many years ago, and that some time after his death the paper-writing in question was filed before the clerk of the Superior Court of said county for probate as his last will and testament, and was declared to be his will and admitted to probate and recorded. The controversy has, in part, arisen from the fact that a part of the territory of Mecklenburg (473) County was taken to form Union County, and the lands in question are situated within the served territory. But this does not affect the jurisdiction of the clerk of Mecklenburg County, as the testator *522 still had lands, or bona notabilia, in the latter county, and was domiciled there at the time of his death, which appears from the probate, and the will was properly probated there.
It appears that the execution of the will was proved by the witness Mrs. Eliza Griffin, and the hand-writing of the other subscribing witness by his son, Harmon B. King. It may be that the proof is not as formal or as full as it might have been, or as it should have been, but the probate is not so radically defective as to admit of collateral attack, as the above authorities clearly show.
The court should have dismissed the action upon the first motion made by the defendants, for the want of jurisdiction, and also because there was no cause of action stated which was properly cognizable in that court, as the probate proceedings before the clerk of the Superior Court of Mecklenburg County cannot be thus collaterally attacked, and this reverses the judgment.
Reversed.
Cited: In re Thompson,