Harrison v. . Harrison , 106 N.C. 282 ( 1890 )

The coexecutor, George Harrison, was removed without notice, and L. A. Paschal appointed administrator, with the will annexed. This administrator, in October, 1870, filed a petition against Nancy E. Harrison, the widow of the testator, and the other defendants, his devisees, to sell certain real estate for assets. No service of any kind was made upon any of the defendants except (283) George Harrison, as to whom there was service by publication. No guardian ad litem was appointed for the infant defendants, nor were they in any way represented.

On 3 December, 1870, an order was made directing a sale upon thirty days notice. The administrator sold the land on 5 December, and the sale was confirmed on the 19th of the said month. The land brought only one-third of its value. The defendants had no notice of the time and place of the sale, nor of the order of confirmation.

The simple recital of these facts shows such an utter disregard of the rights of property and of the fundamental principles of law by which these rights are protected, that it is difficult to realize that such proceedings could have been had in a court invested with such important jurisdiction.

As the interest of the widow ceased at her death, in 1887, this motion to set aside the order of sale, and the proceedings thereunder, is made by all of the remaining defendants, except George Harrison.

We cannot hesitate in affirming the judgment of his Honor declaring the proceedings void. However anxious the Court has been to uphold irregular orders and decrees in favor of innocent purchasers, we can find no decisions which authorize judicial sanction to any proceeding in which there has been no service of process of any kind upon the parties interested. Such proceedings, under the Bill of Rights, as well as upon every conceivable principle of natural justice, must be declared utterly void and of no effect.

The Code, sec. 1438, provides that no order of sale in such cases shall be granted until the heirs or devisees of the deceased have been made parties by service of summons. "This provision embraces infants as well as adult persons. Hence, the Court has repeatedly and uniformly held that such proceedings, decrees and judgments are void and (284) of no effect against the heir not, in some sufficient way, made a party to the same, whether infant or adult. Stancill v. Gay,92 N.C. 462, and the cases cited." Perry v. Adams, 98 N.C. 167.

It is contended, however, that the omission of service as to the infant defendants is cured by section 387 of The Code. It has been held that this provision is inoperative unless the infant has been represented by a guardian ad litem, or next friend, as the case may be. In Perry v. Adams,supra, it is said that "the curative statute is to cure the judgment and the proceeding when such personal service was omitted, but it does not embrace cases where no service was made upon the infant or any other person in his behalf, as the statute requires to be done." Again, in Stancill v.Gay, supra, the Court said that "the Legislature did not intend that a judgment against an infant in an action or special proceeding, wherein he was not made a party defendant, but treated as a defendant, should be rendered effectual against him. A statute with such a purpose would contravene fundamental right and shock the moral sense of just men." These authorities, if, indeed, any were necessary, abundantly sustain the ruling of the court below.

It is further insisted that the defendants have, in some way, ratified the said order of sale. There is much diversity of opinion as to whether void sales of this character may be ratified. Mr. Freeman in his "Monograph on Void Judicial Sales, 67," says that "these sales may be ratified either directly or by a course of conduct which estops the party from denying their validity; thus, if the defendant in execution, after a void sale of his property has been made, claims, and recovers the surplus proceeds of the sale, with a full knowledge of his rights, his act must be thereafter treated as an irrevocable confirmation of the sale."

Granting this to be true, and putting it on the more logical ground of estoppel, we can find nothing here which debars the (285) defendant from having the proceedings declared void. The defendants have never taken any benefit under them, and the mere fact that their pendency was recited in the petition for dower, filed by their mother, cannot have that effect, even if it clearly appeared that such petition was ever served upon them, or otherwise brought to their knowledge. Something more than bare notice is necessary to estop one from setting aside a void proceeding. Neither can a delay in making this motion preclude them.Larkins v. Bullard, 88 N.C. 35, and the cases cited.

Whatever equity the purchasers may have by way of substitution to the claims of the creditors to the extent of the purchase-money, must be asserted when the defendants seek to recover the property.

Affirmed.

Cited: Harrison v. Hargrove, 109 N.C. 347; Williams v. Johnson,112 N.C. 436; Harrison v. Harrison, 114 N.C. 220; Harrison v. Hargrove,120 N.C. 99; Ditmore v. Goings, 128 N.C. 327; Simmons v. Box Co.,148 N.C. 345; Holt v. Ziglar, 159 N.C. 277; Harris v. Bennett, 160 N.C. 341;Mann v. Mann, 176 N.C. 377; Clark v. Homes, 189 N.C. 708; Fowler v.Fowler, 190 N.C. 541.