14 S.E. 924 | N.C. | 1892
The plaintiffs claim as purchasers from two of the heirs at law of Jesse Heptinstall, and the title of the defendants is derived from another of the said heirs and the widow of the said Jesse.
The plaintiffs, therefore, are the owners as tenants in common of (394) an undivided two-thirds interest in the land mentioned in the petition, and they are entitled to a decree directing that the same be sold for partition, unless the right of partition is to be postponed until the expiration of the homestead (which includes the whole tract) by the death of Ophelia, the widow. Plaintiffs contend that the allotment of the homestead is void as to them; and inasmuch as such allotment does not constitute color of title (Keener v. Goodson,
The decree in such a proceeding is binding upon the whole world, and it cannot be seriously contended that the mere allotment of a homestead to one who has no title can estop the true owner, who has had no notice, from asserting his rights of property. Again, constructive (395) notice, as we have seen, must be given to the whole world, and under proceedings for the allotment of a homestead the creditors are the only persons who are required to be notified by the "advertisement" provided in The Code, sec. 515.
These considerations are sufficient to show that the proceeding is not strictly, but at the most, only quasi in rem; in which case it is well settled that, so far as the rights of specific property are concerned, no one but parties having actual or constructive notice are bound. Waples Proc. In Rem., ch. 56; Duchess of Kingston's case, notes, supra; Hornthalv. Burwell,
The children were not parties, nor was there any actual or constructive notice given, or required to be given, to them, since their mere existence precluded the widow from having a homestead in the said land. The only persons who could be affected were the creditors, and these only as to the manner and extent of the allotment, the duty and authority of the appraisers extending no further than to make the same. Aiken v. Gardner,
Conceding however, that the allotment proceeding was a proceedingin rem in its strictest sense, it would nevertheless be entirely void unless the justice of the peace had jurisdiction to act in the premises. Jurisdiction is, of course, as essential in this as in all other cases (Waples, supra), and if it is to be determined by the right to have a homestead set apart as against the children, it must follow that the justice of the peace had no authority, and the allotment was void. That such is the principle by which jurisdiction is to be determined in this particular proceeding is apparent from Gheen v. Summey,
It is insisted upon the authority of Neville v. Pope,
We are of the opinion that the ruling of his Honor was correct, and that the judgment should be affirmed.
Affirmed.
Cited: Formeyduval v. Rockwell,
(398)