Springer v. . Shavender , 118 N.C. 33 ( 1896 )

Avery, J.:

The basis cf the application to rehear and reverse the former ruling of this Court (116 N. C., 12) is the contention that there was error in holding that the children of George W. Dixon were not concluded by the finding in the special proceeding, instituted by his administrator to sell the land in controversy, and to which said heirs were paities, that he was then dead', though it is now found by the jury that he was in fact alive when the administrator issued the summons and when the land was sold under the decree for assets. The question presented is whether the doctrine of estoppels applies to and binds the children, who since Dixon’s death have brought suit to recover possession from those claiming.through the purchaser at the sale, and it depends for its solution upon the answer to the preliminary question whether the judgment is in law utterly void or only voidable. The contention of the defendant rests up m the erroneous assumption that a judgment void for want of jurisdiction of the subject matter is conclusive on the parties and protected from collateral attack, as it is where the authority to deal with the subject matter is conceded and it is proposed to impeach the decree, because of an incorrect finding in the record that a party waived personal service by appearance or otherwise, submitted to the authority of the court. The fundamental and inherent difference between the two kinds of judgments grows out of the fact, that the right, to be present in court and have an opportunity to defend an action, where it is proposed to adjudicate one’s title to property, is a personal one, and a party may waive by acquiescence, or by neglect even, the requirement of the statute that notice or summons shall be actually served, or served in a specified manner or within a given time, while the authority of the court to take jurisdiction of the subject matter is derived from an express grant by the sovereign state in the Constitution and laws made in pursuance of it, and, like any other agent acting under a power, a judicial tribunal is not warranted in going beyond the limits of “the law of its creation” fairly construed. Thomas v. The People, 107 Ill., 517; Melia v. Simmons, 45 Wis., 334; Scott v. McNeill, 154 U. S., 34, 46. The law under which the jurisdiction of a clerk is exercised, is the provision of the Constitution (Art. IV., Sec. 12) which empowers the legislature to allot and distribute the jurisdiction conferred by the organic law amongst those courts inferior to the Supreme Court, and the statute ( Code, Sec. 1436 ) which in pursuance of the provision of the Constitution authorizes the institution of a special proceeding. “ When the personal estate of a decedent is insufficient, to pay all his debts.to sell the real property for the payment of the debts of such decedent. ”

In discussing the contention that such judgments, as that rendered in the special proceeding, are liable to collateral attack, the Supreme Court of Texas gives its sanction to the principle upon which the former opinion in this case rests, as follows: “This (the rule that judgments cannot be collaterally impeached) cannot be universally true, because in the case of an administration upon the estate of a living man the court necessarily determines that the man is dead, and yet the man may be shown to have been alive at the time of the judgment, and in such case-although every step in the proceeding by which the man’s estate is sold may have been taken with the most perfect regularity, and although the purchaser-,buys in good faith, no title passes or can pass.” Withers v. Jackson, 27 Texas, 497. But the learned counsel for the-petitioner intimated that the Court of Texas was out of' line with the current of authority in holding such decrees void for want of power in the court to pronounce them,, without actually acquiring jurisdiction over the subject matter in the manner prescribed by law. It would seem therefore but proper that, somewhat extended quotations, and numerous citations should be made to show that the-contention is not well founded.

“ Jurisdiction,” said the Supreme Court of Illinois in Thomas v. People, supra, “ in the general and most appropriate sense of that term, as applied to the subject matter-of a suit, is always conferred by law, and it is a fatal error to suppose the power to decide in any'case rests solely upon the averments of a pleading.” Quoting from Melia v. Simmons, 45 Wis., 334, the Court said of the appeal before it: “ If this case falls within any class of cases, it is a class in which no court has any right to deliberate or render any judgment, and in which every conceivable act' is an absolute nullity. The only jurisdiction the county court has in respect to the administration of -estates, is-over the estates of dead persons. It would seem that the bare statement of such a proposition is enough without citing authority.”

In enumerating the classes of cases in which decrees of' probate courts are utterly void, and those where the court has jurisdiction of the subject matter, but by some mistake-issues letters testamentary irregularly or illegally, the Court of New Hampshire classified our case among those void for want of jurisdiction. “So,” said the Court,. where a will is proved or letters are granted, when the person supposed to be dead is still living, the powers of the •courts being limited to the estates of deceased persons. Morgan v. Dodge, 44 N. H., 259. An examination of the ■authorities cited in Scott v. McLean, 154 U. S., at p. 47, to ■•sustain the proposition that where a probate court adjudges that a man is dead when he is alive, the judgment is invalid, shows that in the following cases such a decree was held to be “ absolutely void for all purposes and ab initioP Melia v. Simmons, supra; Thomas v. People, supra; Stevenson v. Superior Court, 62 Cal., 60; D'Arnsment v. Jones, 4 Lea (Tenn.), 251; Perry v. St. Joseph R. Co., 49 Kan., 420.

In the case of Scott v. McLean, supra, the only question presented was whether the alleged intestate was bound by the probate proceeding to which his heirs were parties, and in which the court had found that he was dead, when he appeared in person before the court, and of course it was only adjudged that he was not estopped from denying the title of the purchaser under a decree to sell his lands for assets. But on page 43 the Court said: “ The absolute nullity of administration granted upon the estate of a living peison has been directly adjudged or distinctly recognized in the courts of many other States.” The second ■authority cited in support of the proposition was State v. White, 7 Ired., 116, where the obligor on a bond executed •as administrator of an alleged intestate, not the intestate himself, was allowed to impeach the grant of letters collat•erally. The Court, after citing an array of authorities^ •call attention (as did this Court in the former opinion) to the fact that the case cited in the petition from 63 N. Y., 460, is not sustained by authority elsewhere, was seriously •criticized by Chief Justice Redfield, and subsequently explained by the Court which rendered it, as governed by a statute somewhat peculiar in its terms.

No man can put himself in the place of the sovereign, and make the adjudication of a court valid by ratifying an unauthorized exercise of power by its agent when the law of the land, which is the agent’s power of attorney,, declares that the court has no authority to render the-judgment. It was upon this principle that this Court, in. State v. White, supra, allowed the obligor upon the plea of the general issue to show that the alleged intestate of' the plaintiff to whom letters of administration had been issued was alive when the letters were granted. If he was-. ^alive the subject matter was wanting and there was no jurisdiction in the probate court. This Court may be supposed to have known that the facts in London v. Railroad were not such as to make it direct authority to support this principle, but it is authority to show that the Court there (88 N. C., pp. 588, 589,) cited State v. White., supra, with approval, and distinguished London v. Railroad from it, as subsequently the same principle was adverted to in Garrison v. Gox and other cases cited for the purpose of distinguishing them aud not in support of the opinion.. After citing State v. White, with approval (p. 89), the-Court said: “If the person on whose estate the court-undertakes to grant letters testamentary or of administration l)e dead, and at the time of his decease have his domicile or have bona notabilia to be administered, it matters not how irregular may be the proceedings of the court, or how obscured and incomprehensible its conclusions, they afford sufficient authority to cover the bona fide transaction of its appointees.” The Court thus clearly sustained the doctrine already stated, that irregularities in appointing administrators would not invalidate their acts where-it appeared that there was a dead man, and jurisdiction, consequently of the subject matter — his estate — and, oil the other hand, by citing, with approval, State v. White to sustain the proposition, that whenever it appeared, even by way of collateral attack, there was no dead man, the jurisdiction would be declared defeated and the decree treated as void.

Upon examination it will be found that this distinction has been followed by all text writers and all the appellate •courts of this country that have had occasion to discuss the subject, with the single exception of the Court of New York, which rests its ruling, as has been stated, upon the peculiar provisions of The Code of that State.

This Court, in Collins v. Turner, N. C. Term Rep., 105, (54) sustained the principle, upon which the decision in this- case rests, by holding that the grant of letters of administration on the other hand in a county where the court had no jurisdiction of the subject matter, was utterly void and might be attacked collaterally, thus marking the distinction between that and the case where, dealing by proper authority with the subject matter, the court has inadvertently deprived the lawful claimant of the administration. In the early case of French v. Frazier, 7 J. J. Marshall (Ky.), 425, the Court, upon the principle that an administration upon the estate of a person then alive was void for all purposes and could be impeached collaterally, held, as did this Court in State v. White, supra, that a debtor of the alleged decedent could set up the plea that the plaintiff was not administrator.

The distinction which seems to have been overlooked by the petitioner in this case is that, while none but parties are bound by a decree, and while the want of actual service may be waived, a judgment, where , there is want of jurisdiction of the subject matter, is void as to all persons, • and consent of parties can never impart to it the vitality which a valid judgment derives from the sovereign state, the court being constituted by express provision of law its agent to pronounce its decrees in controversies between its people. State v. White, supra.

It seems needless to pile up other authorities to sustain the proposition, that where a court rests its right to jurs-dietion of the subject matter upon a grant of power to deal with the estates of dead men, its decrees are absolutely void when the administration is by mistake upon the effects of a living person. Yet it is respectful to notice and follow the line of the argument on behalf of the petitioner, and to discuss the leading authority relied upon to support his contention. The Supreme Court of Washington rested its decision in Scott v. McNeill, upon the New York case, cited for the petitioner, but the Supreme Court of the United States on appeal pronounced it, as we have stated, insufficient authority. 'The Court of Washington also held that the judgment was good even against the alleged intestate on his re-appearance, on the ground that the probate court was required to find that a person was dead before the grant of letters, and the proceeding was therefore in effect one in rem, but this reason was also declared wholly insufficient. The Court in Scott v. McNeill laid down the proposition (p. 46) that “to give such proceeding any validity there must be a tribunal competent by its constitution — that is, by the law of its creation — to pass upon the subject matter of the suit.” The Court go on to say (p. 47) that the death of the owner of an estate is “ a fundamental prerequisite to the exercise by the probate court of jurisdiction to grant letters testamentary or of administration upon his estate, or to license any one to sell his land for the payment of his debts.” If the death was a fundamental prerequisite to the exercise of jurisdiction, it was because, until the death occurred, there was no subject matter. If there was no jurisdiction for the want of authority over the subject matter, the decree was void, and consent or acquiescence in the decree could not impart vitality to it, so as to estop any one. Grant that the precise appluation of the governing principle had never been made before the decision of this case, still, if a court cannot render a valid judgment without jurisdiction of. the subject matter of the action, and nothing but a valid judgment will operate as an estoppel upon any one, it would seem that this Court might safely rest its opinion upon principle without waiting to find a precedent. It is preferable always to rely rather upon a substantial reason or a fundamental principle, than upon an ill-considered precedent, but in fact the research of counsel has not enabled them to find a single authority in conflict with the opinion which they ask the Court to modify.

The reasoning of the petition rests upon the idea that the same rule as to the binding effect of judgments is applicable where there is a defective service ou some of the persons interested, as where there is a want of jurisdiction of the subject matter ; and the petition is based upon a false construction of section 364 of 1 Herman on Estoppels, where the author is treating the question of personal service. In the succeeding section (365) the same writer explains that where there is no service at all, the judgment is void and subject to collateral attack, but “if the court to which the process is returnable adjudges the service to be sufficient and renders judgment thereon, such judgment is not void but only subject to be set aside by the court which gave it, upon reasonable and proper application or reversed upon appeal.” “ The rule, therefore, deducible from the authorities (says the same author in the section referred to) may be thus stated : Where jurisdiotion is aogiáred no irregularity in the mode of exercising it can affect the judgment, when collaterally attacked,” &c. The foregoing quotation shows as plainly as it is possible to prove it that the author relied upon to sustain the petition to rehear was in the very section cited, discussing a finding by a court, not that it had jurisdiction of the subject matter, and not even that it had jurisdiction of the persons of the parties when no service at all had been made, but a finding where the service was only apparently irregular, that there had been in fact no defect.

But the section relied upon is authority for the position that a void judgment is not protected from collateral atta'ck and works no estoppel even on a party to the proceeding in which it purports to have been rendered. The same author (1 Herman, Section 364) says that the necessary elements of a good plea oires adjudícala are not only that there should have been a final judgment between the same parties for the same cause of action, but “ the principal element is that it must be a valid judgment. That is, it must be rendered by a court legally constituted, having jurisdiction of the eause and the person. Without jurisdiction there is no validity or vitality to the judgment. In order to g-ve validity to a judgment of a court there must be jurisdiction of the cause and of the person.”

The question here is whether the judgment operated as an estoppel upon the heirs because of the declaration and finding of the court that their ancestor was dead when he was in fact alive, and because they did not appeal from that finding and have it reversed or institute a direct proceeding to set it aside. The author relied upon, as appears from citations already made, declares that such findings are conclusive as to the fact of service, when collaterally attacked, not where there was no service and no jurisdiction of the person at all. Of course the inference would be, if nothing further appeared, that no such finding could give jurisdiction of the subject matter because it set forth that a live man was dead any more than would the finding that service had been had on a party, when no process'had been issued against him. But Herman does not leave us to conjecture or to determine by reasoning upon principle what are his views upon this subject. In section 65 he says : “ Jurisdiction is given by law and cannot be conferred by consent of the parties ; but a privilege defeating jurisdiction may be waivedii the court has jurisdiction over the subject matter. Jurisdiction must either be of the cause, which is acquired by exercising powers conferred by law over property within the territorial limits of the sovereignty or of the person, which is acquired by actual service of process or personal service oí defendant.” This is the well-established doctrine, that a person may waive the right to demand personal service of process on him, because it is a question, affecting only his personal rights, and the adjudication of a court that there was no irregularity in service is deemed, prima facie only, to be correct.

In stating what is essential in order to give conclusive effect to a judgment, Bigelow in his work on Estoppel, p. 5T, says : “ In the next place the judgment must have been valid. If for want of jurisdiction or for any other reason it was void, it will have no effect, though it wTas otherwise as we shall see, if it was only voidable,” (citing the opinion of Judge Cooley in Nixon v. Stevens, 17 Mich., 518.) “ It is necessary that both the person of the defendant and the subject matter of the suit should be fully within the cognizance of the court either at the beginning or in the course of the action.” As illustrating the principle that only valid judgments work an estoppel, the author cites two leading cases from the courts of New Jersey. In the first of these (School Trustees v. Stocker, 13 N. J., 116) the Court laid down the principle that jurisdiction over the subject matter of a suit “ cannot be conferred by consent, nor can the right to object to a want of it be lost by acquiescence or neglect.” The Court said: “ If the question were one merely of jurisdiction as to a party defendant not properly brought into court for want of process or for detective service of it, the objection would be well taken. This kind of jurisdiction may be obtained by consent, or the want of it may be waived by consent or failing to take advantage of it at the proper time. But in the case before us the difficulty lies much deeper. The question here is not whether a competent court had obtained jurisdiction of a party triable before it, but whether the court itself is competent under any circumstances to adjudicate a claim against the defendant below.” Another authority cited by the author was Dodd v. Una, 40 N. J. Eq., 672, where the Court held that a petitioner or one who concurred in the prayer of the .petitioners in an equitable proceeding and who not only acquiesced in but. prayed for and invited the action of the court, was not precluded from questioning its jurisdiction to render a decree. The Court in that case cited as the most “concise and complete definition of jurisdiction, that of Chief Justice Beasuey in Munday v. Vail, 5 Vroom, 422, who defined it to be,- u The right to adjudicate concerning the subject matter in a given case.”

If it -were necessary numberless authorities might be added in support of the propositions : 1. That a judgment is void, not voidable, if the court has no jurisdiction of the subject matter of the action. 2. That where a judgment ■is invalid for want of jurisdiction of the very subject matter, its authority over which must be derived from a grant from the sovereign State, the assent or the neglect of a person cannot confer on it the power which the State has failed to vest in it, though a person may thus waive the assertion of his rights of a purely personal nature. 3. That a judgment void for want of jurisdiction of the subject matter cannot conclude any person, whether a party or stranger to the proceeding. This position is sustained by the authorities cited by Bigelow and referred to above, if it be necessary to cite additional authority to prove that there is no estoppel without jurisdiction, and that no individual can exercise the pofver of the government to give jurisdiction where the law does not confer if, and thereby estop himself, when every other person is left at liberty to plead in avoidance the want of authority in the court.

Up:n the former hearing, as upon the rehearing, the conclusion of the court rests upon the two plain propositions, that the judgment in the special proceeding was void for want of power in the court to exeicise jurisdiction over the estate of a live man, and the deduction from it that, being void, it worked no estoppel.

If additional reasons are necessary to sustain the opinion on the former hearing, the acknowledged test of the conclusiveness of a decree upon a party in such cases, may be applied, and would be involved in the question whether the purchaser, through whom the plaintiff claims, and, by reason of his privity with whom, he insists that the heirs of Dixon and their assignees are concluded, would have been estopped by the finding from paying the amount of his bid (30 dollars).had he discovered before payment that Dixon was alive. Estoppels must be mutual, and in order to operate mutually in this case, the decree must have been conclusive, as to the very finding insisted upon, both on Windley the purchaser and the heirs of Dixon. This is an action for possession, in which the question whether the purchase money paid by Windley shall be restored is not raised, and cannot be considered. The heirs of Dixon, who were sui juris, might have waived personal service and given the court jurisdiction of their persons, but they could no more impart the vitality, which is essential to the operation of the doctrine of estoppel, to a judgment rendered against a live man under authority applicable only to decedents, than they could confer any other author-* ity which the Constitution empowers the legislature “ to allot and distribute ” among other courts prescribed in the Constitution, or which may be established by law. Const., Art. 4, Sec. 12.

If it had appeared upon the record that George W. Dixon was alive when the special proceeding was instituted and when the decree of sale was granted, the judgment would have been pronounced a nullity without proof aliunde that he was not dead. There is no sufficient reason to adopt the suggestion of the petitioner and modify the proposition to this effect in the former opinion of the Court.

The Petition is Dismissed.