Alexander v. Iredell County Board of Education

PARKER, J.

By their amended motion in the cause filed 29 December 1967 movants attack the order of sale entered in the 1923 partition proceedings and the deed executed pursuant thereto on two grounds: First, that the attorney who purported to represent the petitioners in the 1923 ex parte proceedings had no authority to do so; and second, that even if the attorney had been authorized to bring the proceedings, the order of sale obtained thereby was fraudulent in that the attorney purported to represent the selling petitioners but actually represented the purchaser. The court, after hearing movants’ evidence, found the 1923 proceedings regular and found no evidence of any fraud. These findings of the trial court are supported by the record before us.

Movants alleged fraud but were not able to support their allegation by evidence. There was evidence the attorney did do some work for the County Board of Education some years later, but there was no evidence that he represented the Board at the time it became the purchaser in the 1923 proceedings. The purchaser was a public body acquiring the land for public purposes beneficial to all residents of the community, including the sellers. There was no evidence the attorney or any individual member of the purchasing board profited in any way by the transaction. There was no evidence that the price paid was less than the full value of the property sold. The order approving the sale found as a fact that the price offered was as much or more than the land would bring if sold at public auction. There was no evidence to the contrary. In the year 1923 a price of $50.00 per acre for rural land in Iredell County would not appear inadequate. The burden was on movants to produce evidence to prove their allegations of fraud. They produced none. Their attack on that ground must in any event fail for lack of proof.

There is, however, another reason why their motion, insofar as it was based on allegations of fraud, would have to be dismissed: “If there has been fraud in obtaining a judgment, the court may set it aside upon motion if the action is still pending; but if the action is ended by a final judgment, relief may be had only by an independent action to impeach the judgment.” (Emphasis added.) 2 McIntosh, N.C. Practice 2d, § 1718. The reason for this rule was aptly stated by Clark, C.J., in Simmons v. Box Co., 148 N.C. 344, 345, 62 S.E. 435, 435:

“When it is sought to set aside-a judgment for fraud, that must be done by an independent action, because it depends upon extraneous facts, which the parties are entitled to have found by a jury. The judgment is not void for fraud, but voidable. On the face of the record it is regular. But when it is sought to set aside a judgment for irregularity, in that there has been no service of summons, it is for the court to find the facts and correct the record to speak the truth, and if in fact there was no service of summons or appearance by the defendant (which would waive service of summons), the judgment is void.”

This rule, that a final judgment cannot be attacked for fraud by a motion in the cause, was formerly subject to a statutory exception in the case of orders directing sales of land on petition for partition. C.S. 3243, which was in effect at the time of the 1923 proceedings, contained the following:

“Any party, after the confirmation, shall be allowed to impeach the proceedings and decrees for mistake, fraud or collussion, by petition in the cause: Provided, innocent purchasers for full value and without notice shall not be affected thereby.”

This statute was brought forward in the General Statutes of 1943 as G.S. 46-32, and remained in effect until repealed by Chapter 719, § 2, of the 1949 Session Laws, effective 1 January 1950.

The special proceeding with which we are here concerned was terminated by the clerk’s order of sale approved by the judge on 14 September 1923. From that date it was no longer pending. More than 44 years thereafter movants filed their motion in the cause seeking to set it aside. The statutory exception permitting an attack for fraud by means of a petition in the cause was no longer in effect. Therefore, while we agree with the trial judge’s conclusion that there was here no evidence of fraud on the part of any of the parties concerned, the motion should in any event have been dismissed insofar as it was based on fraud, since under the circumstances relief on that ground could have been obtained only by an independent action to impeach the judgment.

The motion would not necessarily fail, however, merely because it included allegations of fraud. These may be treated as surplusage, and the motion then be considered on the basis of the remaining ground on which it was made. Carter v. Rountree, 109 N.C. 29, 13 S.E. 716. Movants contend that the attorney who purported to represent them in filing the ex parte partition proceedings actually had no authority to do so and that they were thereby made parties without their knowledge or consent. Should these allegations be established and if movants have done nothing to ratify the proceedings, the order of sale and the deed executed pursuant thereto would be subject to attack by motion in the cause. Howard v. Boyce, 254 N.C. 255, 118 S.E. 2d 897; Simmons v. Box Co., supra; Hargrove v. Wilson, 148 N.C. 439, 62 S.E. 520; Annotation, 88 A.L.R. 12. In such case, while jurisdiction would apparently have been acquired over petitioners by the filing of the ex parte petition in their name, jurisdiction would have been in fact lacking and the judgment rendered thereon would be a nullity. The situation in such case would be similar to those cases in which some fraud is perpetrated on the court whereby jurisdiction is apparently acquired but is in fact lacking. “The rule is that if a fraud is perpetrated on the court whereby jurisdiction is apparently acquired when jurisdiction is in fact lacking, the judgment rendered thereon is a nullity and may be vacated on motion in the cause.” McLean v. McLean, 233 N.C. 139, 145, 63 S.E. 2d 138, 143.

In the case before us the evidence was conflicting on the question of the attorney’s authority to represent the petitioners in filing the 1923 proceedings. Two of the movants, who had been named with a large number of other persons as original petitioners in those proceedings, testified they had not authorized the attorney to file the proceedings in their behalf and were not aware any such proceedings had been filed. At the time of testifying, one of these witnesses was 78 and the other was 83 years of age. They were testifying concerning events occurring more than 44 years previously. Their testimony was contradicted by the face of the record itself, which included notations that many years ago each of them had actually received from the clerk’s office her proportionate share of the sales proceeds. The trial judge, after hearing these witnesses testify and observing them in person, apparently concluded that the face of the record was more persuasive. He found the order of sale by the clerk to be regular and to have been duly confirmed by the resident judge. “There is a presumption in favor of an attorney’s authority to act for any client whom he professes to represent.” Bank v. Penland, 206 N.C. 323, 173 S.E. 345. The burden was on the movants to convince the trial judge to the contrary. Faced with conflicting evidence, he ruled against them. In this we find no error.

Finally, there is an additional reason the movants cannot prevail. The trial judge has expressly found no evidence of fraud on the part of the Iredell County Board of Education or any of its agents. None was presented. “It is well settled 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, 83, 197 S.E. 873, 876; See also, Menzel v. Menzel, 254 N.C. 353, 119 S.E. 2d 147. “When the record shows both service and appearance, it is clear that the rights of good faith purchasers at execution sale or good faith purchasers of the judgment will be protected against direct or collateral attack, even though there was in fact no service and the appearance by an attorney was unauthorized. The party injured may, of course, sue the attorney and anyone else sharing responsibility for the unauthorized appearance.” (Emphasis added.) 1 McIntosh, N.C. Practice 2d, § 933, p. 488. Therefore, even though movants had been able to establish that the appearance by the attorney in the partition proceedings had been unauthorized, when the Iredell County Board of Education became purchaser at the court-ordered sale, in the absence of any evidence of fraud or knowledge of fraud on its part, its rights as a good faith purchaser will be protected against direct or collateral attack. Rackley v. Roberts, 147 N.C. 201, 60 S.E. 975; Hatcher v. Faison, 142 N.C. 364, 55 S.E. 284; Williams v. Johnson, 112 N.C. 424, 17 S.E. 496; England v. Garner, 90 N.C. 197.

Since in any event the movants cannot prevail, it is not necessary for us to consider whether their motion was barred by laches or estoppel in permitting the County Board of Education to remain in undisturbed possession of the land for a period of more than 44 years, during which period the movants observed the Board erect substantial improvements on the property.

In the trial court’s order denying appellants’ motion, we find

No error.

Campbell and GRAHAM, JJ., concur.