Cherry v. Woolard

94 S.E.2d 562 (1956) 244 N.C. 603

Samuel D. CHERRY, Lucy A. Ambrose and Charlie W. Cherry.
v.
Dennis WOOLARD.

No. 30.

Supreme Court of North Carolina.

October 17, 1956.

LeRoy Scott, John A. Wilkinson, Washington, N.C., for plaintiffs appellants.

Rodman & Rodman, Washington, N.C., for defendant appellee.

WINBORNE, Chief Justice.

The sole assignment of error presented on this appeal is based upon exception to the action of the trial court in granting defendant's motion for judgment as of nonsuit at the close of plaintiffs' evidence.

At the outset it is noted that the parties agree that for the purposes of this appeal the ex parte special proceeding numbered 2663 in the office of Clerk of Superior Court of Beaufort County is not a part of defendant's chain of title. Therefore, the inquiry here is, and will be confined to the collateral attack made by plaintiffs upon the civil action, commenced 30 November, 1929, in Superior Court of Beaufort County, wherein Beaufort County is plaintiff and S. B. Cherry, et al, are defendants for purpose of foreclosing tax liens for the year 1927 on the lands described in the complaint, amended to include tax liens for years 1929 and 1930.

There are no exceptions to any particular part of the procedure followed. But plaintiffs, appellants, in their brief filed here, raise several questions in which they contend that reversible' error appears upon the face of the record.

In this connection it is well settled in North Carolina that, in the absence of fraud or the knowledge of fraud, one who purchases at a judicial sale, or who purchased from one who purchased at such sale, is required only to look to the proceeding to see if the court had jurisdiction of the parties and of the subject matter of the proceeding, and that the judgment on its face authorized the sale. Graham v. Floyd, 214 N.C. 77, 197 S.E. 873, citing cases. See also Bladen County v. Breece, 214 N. C. 544, 200 S.E. 13, and cases cited. Also Mclver Park, Inc., v. Brinn, 223 N.C. 502, 27 S.E.2d 548; Powell v. Turpin, 224 N.C. 67, 29 S.E.2d 26.

Therefore in the light of statutes in effect in this State at the time of the institution and pendency of the action to foreclose, does it appear upon the face of the judgment roll that the court had jurisdiction (1) of the subject matter of the action, and (2) of the person of the minor defendants there, plaintiffs here?

Appellants state in their brief "this tax proceeding W-96 is either void or voidable with defects open and apparent on the record."

It is contended that while the minor defendants were brought into this action by what was called an alias summons, the calling of it "alias summons" does not make it so, citing Mintz v. Frink, 217 N.C. 101, 6 S.E.2d 804, 806.

But the difficulty plaintiff encounters is that the factual situation in Mintz v. Frink, supra, is not the same as in the case in hand,—and the statute C.S. § 480, now G.S. § 1-95, relied upon, is inapplicable here. The Mintz case was not dealing with the subject of summons for new parties, as in instant case, but with a case where the summons issued for defendant was not properly served,—the Court saying that the status of the process was the same as if service had not been made, and hence plaintiff then had the right, given by statute, C.S. § 480 (now G.S. § 1-95), to "`sue out an alias * * * summons, returnable in the same manner as original process' * * a right which could and must have been exercised at any time within ninety days next after the date of the original summons". And the Court continued by saying: "In order to preserve a continuous single action referable to the date of its institution the original ineffective summons must be followed by process successively and properly issued * * *. An alias follows next after the original. * * *"

Thus, as the statute, C.S. § 480, in effect in 1931 expressly states, "When the defendant in a civil action or special proceeding is not served with summons within the time in which it is returnable, the plaintiff may sue out an alias or pluries summons, returnable in the same manner as original process." An alias summons issues only when the original summons has not been served upon a party defendant named therein. Powell v. Dail, 172 N.C. 261, 90 S.E. 194; Rogerson v. Leggett, 145 N.C. 7, 58 S.E. 596.

Now did the court have jurisdiction of the subject matter of the action to foreclose, and of the parties? C.S. § 7987 provided in pertinent part that the lien of county taxes levied for any and all purposes in each year shall attach to all real estate of the taxpayer situated within the county by which the tax list is placed in the sheriff's hands, which lien shall attach on the first day of June, annually, and shall continue until such taxes, with the penalty and costs which shall accrue thereon, shall be paid.

And C.S. § 7990 provided in pertinent part that a lien upon real estate for taxes due thereon may be enforced by an action in the nature of an action to foreclose a mortgage, in which action the court shall order a sale of such real estate, or so much thereof as shall be necessary for that purpose, for the satisfaction of the amount adjudged to be due on such lien, together with interest, penalties, and costs allowed by law, and the costs of such action. When such lien is in favor of the county, such action shall be prosecuted by and in the name of the county.

In an action pursuant to the provisions of C.S. § 7990, it is provided by statute C.S. § 451 that in all actions when any of the defendants are infants, they must defend by their general or testamentary guardian, if they have one within the State; and if they have no general or testamentary guardian in the State, and any of them has been summoned, the court in which said action is pending, upon motion of any of the parties, may appoint some discreet person to act as guardian ad litem, to defend in behalf of such infants. The guardian so appointed shall, if the cause is a civil action, file his answer to the complaint within the time required for other defendants, unless the times extended by the court, C.S. § 453. See Graham v. Floyd, supra; Mclver Park, Inc., v. Brinn, supra.

Indeed the statute C.S. § 453 declares that when a guardian ad litem is appointed he shall file an answer in the action admitting or denying the allegations.

Moreover, the appointment of the guardian ad litem before service upon the infants is an irregularity, but it does not render the proceeding void. The irregularity may be cured by the service of summons on the infants thereafter and the filing of the answer of the guardian. Dudley v. Tyson, 167 N.C. 67, 82 S.E. 1025; Carraway v. Lassiter, 139 N.C. 145, 51 S.E. 968.

In the light of these principles, the record discloses that S. B. Cherry was appointed guardian ad litem of his minor children, and of those not in being, on the same day they were made parties and served with summons. Apparently this was an irregularity, such as is above described, which could be cured by the service of summons on his children, and the filing of an answer by him. They were served, as the record indicates, but he did not file answer, and refused to serve as such guardian. In such event it was the duty of the plaintiff there as held by this Court in Isler v. Murphy, 71 N.C. 436 to have had appointed as guardian some discreet person who was willing to act and defend as the law prescribes. This is just what the plaintiff did in the present case. Upon motion of plaintiff S. B. Cherry was removed as guardian ad litem as aforesaid. And the record shows that accordingly S. M. Blount, who is found by the court to be a suitable, discreet and disinterested person, was appointed guardian ad litem of said minors and of any other children of Samuel B. Cherry and Laura Myrten Cherry, not in esse, and ordered and directed (1) to appear for and represent the interests of the wards for whom he was so appointed, (2) to inquire into and examine the proceeding, and (3) to file such answers on their behalf as in his judgment might be proper. And the record shows that on the same day S. M. Blount accepted the appointment and agreed "to act faithfully and diligently in such capacity." The record also shows that he filed answer in which he admitted the allegations of the complaint and of the amended complaint, and submitted the determination thereof to the court. His appointment and his filing of answer all occurred after the date the record shows the infants were served. On the face of the record this cured any irregularity that resulted from the appointment of S. B. Cherry as guardian ad litem before any of the infants were served.

Appellant calls attention, however, to the phraseology and punctuation in the return of the sheriff in respect to the clause "also, copies to all minor defendants," and the court is urged to study the photograph of the return shown in the record on this appeal, and to determine whether an issue should have been submitted to the jury as to whether there was any delivery of copies to the minor defendants,—that is, whether the above clause was in fact a part of the return as made by the sheriff.

In this connection this Court, adverting to a contention of similar nature in the case of Graham v. Floyd, supra, had this to say [214 N.C. 77, 197 S.E. 877]: "We cannot agree that one examining the title is held to constructive knowledge of so minute details. It would be otherwise if there were actual knowledge thereof." In the present case actual knowledge of the matter sought to be presented does not appear, and constructive knowledge of so minute detail will not be exacted of a purchaser for value at a sale under such proceeding, much less of one who purchased at judicial sale to make assets to pay debts of the one who purchased at the tax foreclosure sale.

Therefore this Court holds that upon the face of the judgment roll of the tax foreclosure action, there is no such irregularity as will impair the validity of it. It is manifest that the court had jurisdiction of the parties, and of the subject matter, and that the judgment on its face authorized the sale. Graham v. Floyd, supra, and cases hereinabove cited.

Moreover, it was not incumbent upon the purchaser at the judicial sale to see that the money paid for the property was properly disbursed. Perry v. Bassenger, 219 N.C. 838, 15 S.E.2d 365.

Indeed, as stated by Stacy, C. J., in Beam v. Gilkey, 225 N.C. 520, 35 S.E.2d 641, 644, "When the purchaser paid his bid into court, or to its officer duly authorized to receive it, he was relieved of any further responsibility in connection with the interests then being sold."

Hence the judgment from which plaintiffs appeal is

Affirmed.

JOHNSON, J., not sitting

RODMAN, J., took no part in the consideration or decision of this case.

PARKER, J., dissents.