Smith v. . Gray

Though we may feel called upon to affirm the judgment of the court below, we cannot say, as the learned judge below did, that in our "opinion the proceeding ``B' was regular." And we fear that plaintiffs, while they were infants, did not receive the protection from the court they should have had.

We find from the transcript of record sent up that Andrew Syme, the administrator of J. J. Jackson, father of plaintiffs, commenced a proceeding in the Superior Court of Wake to subject the land in controversy to assets to pay debts and cost of administration, in which he states in his verified complaint that the property is worth $2,000. This proceeding went on to final judgment and order of sale, without any (313) service on the plaintiffs in this action, except that a member of the bar, professing to act for the infant defendants, had accepted service of process, and although the defendants in this proceeding claimed their homestead the court proceeded to judgment.

In this proceeding Mason and Syme were appointed commissioners, and sold the land, when one McGee became the purchaser at $910, but refused to comply with the terms of sale, for the reasons that the infant defendants had not been served with process and that the homestead had been claimed. Whereupon, Thomas Wynne, who had married the oldest sister of plaintiffs, who was unfriendly with plaintiffs, commenced another proceeding in the same court to have this property sold for partition, making the present plaintiffs defendants. In this proceeding there seems to have been a service of the summons, as follows: "Served 5 February, 1880, by reading the within summons to all the defendants named within." And there was a guardian ad litem appointed for the infant defendants, who filed an answer, admitting all the facts set out in the complaint. And a judgment and order of sale was made in this proceeding, and Andrew Syme and T. P. Devereux were appointed commissioners, sold the property for $800 and reported that it had brought "a fair and full price," and recommended a confirmation of the sale, which was made by the court. These commissioners seemed to have made this sale under the order of the court in the case of Syme, administrator, and also under the order in the case of Thomas Wynne against plaintiffs, in the proceeding to sell for partition. As they report said sale in both proceedings, the court confirms it in both proceedings, and their deed to Pinkston states that it is made under both proceedings.

It also appears that the same attorney who undertook to accept service in the case of Syme, administrator for the infant defendants, acted as the attorney of Thomas Wynne in his proceedings against (314) them to sell the property for partition.

This Court cannot say that such "proceedings are regular," or allow them to receive the sanction of this Court. And if the case stopped here we would most unhesitatingly set them aside, were this a direct proceeding for that purpose.

But, with all this irregularity, we cannot say they were void, and this is the turning point in the case in favor of the defendants.

Where there is no service of process, the court has no jurisdiction, and its judgment is void. Bank v. Wilson, 80 N.C. 200; Stancill v. Gay,92 N.C. 462. Such judgments have no force and may be quashed on motion orex mero motu, and will be treated everywhere as a nullity. Carter v.Rountree, 109 N.C. 29.

When a judgment is attacked for fraud, the remedy is by motion in the cause, if the proceeding is still pending. But if the proceeding has been ended by final judgment, an independent action must be brought. Carter v.Rountree, supra.

In a proceeding to sell lands, when an order of sale has been made and property sold, this is a final judgment; and while it may be set aside in a direct proceeding for that purpose, it cannot be attacked in a collateral proceeding. McLaurin v. McLaurin, 106 N.C. 331; McGlawhorn v.Worthington, 98 N.C. 199; Sumner v. Sessoms, 94 N.C. 371; Hare v.Holloman, 94 N.C. 14. But it seems that this is one of the cases intended to be provided for in the act of 1879 (section 387 of The Code), and the irregularities pointed out above are cured by this act. Fowler v. Poor,93 N.C. 466; Hare v. Holloman, supra; Cates v. Pickett, 97 N.C. 21.

As this judgment was only irregular and not void, it would seem that the deed of the commissioners to Pinkston conveyed the legal title (315) to the property now in dispute, and may be considered as a deed from plaintiffs while they were infants, which, though voidable, was not void, and might be ratified by them after they reached their majority. And if this is so, we hold the fact that, after they came of age and being in possession of all the facts, their receiving the residue of the purchase-money was a ratification of what had been done and of defendants' title. And they will not now be allowed to come into court and dispute the same.

It is not contended but what defendants are purchasers for a valuable consideration and without notice; and it may be that this would be another ground of defense. But as we have decided the case for defendants upon other grounds, we do not consider this.

Affirmed.

Cited: Rawles v. Carter, 119 N.C. 597; Murray v. Southerland,125 N.C. 177; Norwood v. Lassiter, 132 N.C. 57; Earp v. Minton,138 N.C. 204; Credle v. Baugham, 152 N.C. 20.