Deans v. Deans , 241 N.C. 1 ( 1954 )

84 S.E.2d 321 (1954) 241 N.C. 1

Bessle DEANS
v.
Penrose DEANS.

No. 161.

Supreme Court of North Carolina.

November 3, 1954.

Jones, Jones & Jones, Ahoskie, and John R. Jenkins, Jr., Aulander, for defendant-appellant.

V. D. Strickland, Rich Square, Gay & Midyette, Jackson, for plaintiff-appellee.

HIGGINS, Justice.

The complaint in this case is a jumble containing some parts of different causes of action. It is drawn without regard to the requirement that each cause of action should be separately stated. First, it is alleged that the plaintiff and defendant bought a vacant lot under an agreement that title should be taken in the names of both as joint and equal owners. Second, that under the belief she shared in the title, she contributed money and labor to the erection of a building on the lot under such circumstances as would amount to a trust for her benefit. Third, that the defendant maliciously turned her out of doors, drove her from her home, and failed to support her. In her prayer for relief, she asked the court to declare that she is entitled to a one-half interest in the land and that the title be declared held in trust for her benefit; that the court appoint a commissioner to sell the lands for division, and in the alternative, if the court should hold she is not entitled to one-half interest, that she recover $3,000 because of the defendant's failure to support her.

Upon failure of the defendant to file an answer, the clerk attempted to give the plaintiff the relief demanded in her complaint by decreeing "The plaintiff be and she is hereby vested with a title to a one-half (½) interest in and to that certain lot or parcel of land and residence situate thereon that was purchased from J. M. Tayloe and wife, Mary O. Tayloe, by deed dated April 6, 1945, and recorded in Book 317, page 259, Northampton County Register of Deeds office." This description, it may be noted, does not appear in the complaint.

The complaint alleges the plaintiff and defendant purchased a vacant lot for $405 "and it was agreed and understood at the time said purchase was made that the deed for said lot of land would be made to plaintiff and defendant jointly and that the plaintiff would have a one-half interest in said property." In a later paragraph it is alleged that unknown to her "title was vested in the defendant individually."

Liberally construed, the allegations would give rise to an express trust, that is, a trust arising on the contract to have the title conveyed to both. The plaintiff's remedy on repudiation or refusal to comply would be for breach of contract, and the equitable jurisdiction of the court could be invoked to declare the defendant held title to one-half the property for the benefit of the plaintiff.

In a later paragraph the complaint alleges the plaintiff "thinking at all times that she had and would always have a one-half interest in said property" contributed money and labor to the erection of a six-room dwelling thereon. She alleges her contribution would give rise to a resulting trust in her favor. A trust of this character arises "when a person becomes invested with a title to real property under circumstances which in equity obligate him to hold the title and to exercise his ownership for the benefit of another. Under such circumstances equity creates a trust in favor of such other person commensurate with his interest in the subject matter. A trust of this sort does not arise from or depend on any agreement between the parties. It results from the fact that one man's money has been invested in land and the conveyance taken in the name of another. It is a mere creature of equity." Teachey v. Gurley, 214 N.C. 288, 199 S.E. 83, 86.

The plaintiff's interest would be limited in proportion to her contribution to the whole purchase price. But nowhere does she allege the amount or value of her contribution. On failure to establish either an express or a resulting trust, she may be able to allege and prove sufficient facts to permit a recovery for improvements put upon the land under the mistaken belief she shared in the title.

What has been said thus far relates to the failure of the complaint adequately to state causes of action. Certainly not less serious is its failure properly to define the subject-matter of the action with sufficient certainty to give the court jurisdiction. In order for the Superior Court of Northampton County to have jurisdiction, the complaint must allege the land, or at least some part thereof, is located in Northampton County. The description is contained in paragraph 3: "A vacant lot or parcel of land bought from J. M. Tayloe for $405." And in paragraph 4 it is alleged: "After the purchase of said lot of land in 1945 the plaintiff and defendant built a six-room residence on said land." Nothing else in the complaint adds to the description. Where is the lot? Is is in Northampton, Edgecombe, Cherokee, or Currituck? Is it in North Carolina or Virginia? True, there is a more definite description in the judgment by default signed by the clerk, but this judgment is no part of the complaint and cannot supply the defects of the complaint. Where or how the clerk came by the description does not appear. It did not come from the complaint. The clerk of the Superior Court of Johnston County had no authority to allot dower in lands located in Wilson County. Hence, the proceeding was void ab initio. High v. Pearce, 220 N.C. 266, 17 S.E.2d 108.

Another hurdle is the sufficiency of the description. The description must identify the land, or it must refer to something that will identify it with certainty. Otherwise the description is void for uncertainty. Speaking to the question of the sufficiency of description in the case of Johnston County v. Stewart, 217 N.C. 334, 7 S.E.2d 708, 709, this Court said: "When the appellants were brought into the case by the service of summons, it was their first opportunity to be heard, and they had a right to set up any defense of which they were advised in the original proceeding. This they have done by demurring to the complaint on the ground that the description of the property therein contained was too vague and indefinite to constitute the basis for a valid judgment. The only description of the property in the complaint is that ``there was listed in the name of Mrs. D. J. Stewart the following described land: "4 lots lying and being in Banner Township, Johnston County."' It is apparent that the description is neither sufficient in itself, nor capable of being reduced to a certainty by a recurrence to something extrinsic to which it refers. Harris v. Woodard, 130 N.C. 580, 41 S.E. 790; Rexford v. Phillips, 159 N.C. 213, 74 S.E. 337; Speed v. Perry, 167 N.C. 122, 83 S.E. 176; Higdon v. Howell, 167 N.C. 455, 83 S.E. 807; Bissette v. Strickland, 191 N.C. 260, 131 S.E. 655; Bryson v. McCoy, 194 N.C. 91, 138 S.E. 420; Katz v. Daughtrey, 198 N.C. 393, 151 S.E. 879; North Carolina Self Help Corp. v. Brinkley, 215 N.C. 615, 2 S.E.2d 889".

In the case of Bissette v. Strickland, 191 N.C. 260, 131 S.E. 655, the description in question was: "``A certain piece or tract of land lying and being in Nash county, state aforesaid, in Bailey township, and described and defined as follows: All of our lifetime interest in twenty acres of land, more or less, and being a part of the Mary A. J. Bissette estate, and joining the lands of F. R. Perry, John H. Griffin and others.'" F. R. Perry, one of the adjoining landowners, gave parol testimony to aid the description as follows: "that he also knew the particular piece of land containing twenty acres, more or less, described in the mortgage; that it joined his land and also joined the John H. Griffin land, and that E. J. Bissette, the grantor in said mortgage, lived on this particular piece of land for several years, and that so far as he knew, E. J. Bissette never owned any other land in the county." Another adjoining landowner testified that he knew the land described, "that he knew of no other piece of land containing 20 acres, more or less, which joined the land of Kinchen Lyles on the east, Martha Bissette on the west, F. R. Perry on the north, and John H. Griffin on the south except the E. J. Bissette land, ``and that there is no other tract of land that fills the bill.'" Speaking of the description, Justice Brogden for the Court, said: "It cannot be said that the mortgage contains no description of the land conveyed, because reference is made to adjoining owners and the land is further identified as being a part of the Mary A. J. Bissette estate. While the description is not complete, and perhaps may stand upon the border line of legal sufficiency, still it is within the principle announced in Farmer v. Batts, 83 N.C. 387, which principle has been firmly established, as settled law, by an increasing line of decisions reaffirming the soundness of that decision." (Emphasis supplied.)

In Speed v. Perry, 167 N.C. 122, 83 S.E. 176, 178 this Court said: "It is familiar learning, which was aptly stated by Judge Gaston in Massey v. Belisle, 24 N.C. 170, that every deed of conveyance (or contract) must set forth a subject-matter, either certain in itself, or capable of being reduced to a certainty by a recurrence to something extrinsic to which it refers * * ``No decree, however, for specific performance, can be granted the defendant unless "his land where he now lives" (the descriptive words of the receipt) is fully identified by competent testimony.'"

If it be conceded that enough appears in the complaint to permit the introduction of parol evidence to complete the description, the evidence must be offered, and found to be sufficient before a valid decree can be entered.

In the case of Boone v. Sparrow, 235 N.C. 396, 70 S.E.2d 204, 210, this Court said: "``Lack of jurisdiction or power in the court entering the judgment always avoids the judgment. This is equally true when the court has not been given the jurisdiction of the subject-matter, or has failed to attain jurisdiction on account of a lack of service of proper process.'"

The summons and copies of the verified complaint were served on the defendant on February 17, 1953. The defendant did not answer. On March 18, 1953, the clerk entered his judgment by default final, decreeing that the plaintiff be "vested with title for a one-half interest in and to that certain lot or parcel of land and residence situate thereon that was purchased from J. M. Tayloe and wife, Mary O. Tayloe, by deed dated April 16, 1945, and recorded in Book 317, at page 259, Northampton County Register of Deeds Office * * *". In the clerk's order a commissioner was appointed to sell the land at public auction for division. The defendant argues with much earnestness that the default judgment was entered before the defendant's full thirty days in which to answer had expired. Since February in the year 1953 had 28 days, and excluding the day of service and including the day the judgment was signed, only 29 days had elapsed. The defendant contends the clerk signed the judgment one day too soon. In her brief the plaintiff admits the judgment was signed before the time for answering had expired, and that the judgment is irregular for that reason, but she contends it stands until set aside by a proper proceeding. E. L. Timberlake, who bid off the property at the sale, is not a party to this cause.

The defendant, by motion dated 21 August 1953, moved to set aside the judgment by default final on the ground the clerk attempted to execute a parol trust and that his default final judgment is not authorized by G.S. § 1-211, but at most he is authorized to enter a judgment by default and inquiry under G.S. § 1-212.

In McCauley v. McCauley, 122 N.C. 288, 30 S.E. 344, 345, this Court said: "But the clerk is a court of very limited jurisdiction, only having such jurisdiction as is given it by statute. It has no common-law jurisdiction nor does it have any equitable jurisdiction. * * * The clerk had no power to render a personal judgment against the defendant Williams, and declare it a lien on her land; and such a judgment is absolutely void and may be so declared at any time. Freem. on Judgm. § 120. This is bound to be so upon principle. A judgment rendered by a court having no jurisdiction is no judgment. It is absolutely void, and any execution issued on it is void, and gives no force or validity to acts of the sheriff done thereunder."

And again quoting from Boone v. Sparrow, supra, "``A void judgment is not a judgment, and may always be treated as a nullity * * * it has no force whatever; it may be quashed ex mero motu.' Clark v. Carolina Homes, 189 N.C. 703, 128 S.E. 20, 23." And quoting from the latter, "A void judgment is not a judgment, and may always be treated as a nullity. It lacks some essential element; it has no force whatever; it may be quashed ex mero motu. Stallings v. Gully, 48 N.C. 344; McKee v. Angel, 90 N.C. 60; Carter v. Rountree, 109 N.C. 29, 13 S.E. 716; Mann v. Mann, 176 N.C. 353, 97 S.E. 175; Moore v. Packer, 174 N.C. 665, 94 S.E. 449." [189 N.C. 703, 128 S.E. 23].

"Therefore the clerk having undertaken to enter a kind of judgment which she had no jurisdiction to enter, the judgment so entered is void and is a nullity, and may be so treated at all times." Moore v. Moore, 224 N.C. 552, 31 S.E.2d 690, 692.

"If the court has no jurisdiction over the subject-matter, or has not acquired jurisdiction over the person in some manner recognized by law, or if not authorized to grant the particular relief contained in the judgment, the judgment is void." McIntosh, North Carolina Practice and Procedure, p. 734, sec. 651.

The legal defects in this case began with the complaint. For that reason we have pointed out some of its deficiencies. When the case is returned to the Superior Court of Northampton County, the plaintiff may apply for leave to amend if she is so advised.

The authorities herein referred to force us to conclude:

1. The complaint fails to allege the house and lot are located within the jurisdiction of the Superior Court of Northampton County.

2. The description of the property is insufficient to enable the court to enter a valid judgment with respect to it.

3. The clerk of the Superior Court was without authority to enter judgment by default final declaring the defendant held one-half the property in trust for the plaintiff.

4. The judgment of the Superior Court of December 31, 1953, denying defendant's motion to vacate and set aside the clerk's orders of March 18, 1953, and October 29, 1953, was improvidently entered.

The clerk's orders of March 18, 1953, and October 29, 1953, and the judge's order of December 31, 1953, are set aside.

Reversed.