Card v. Finch
| Decision Date | 25 September 1906 |
| Citation | 54 S.E. 1009,142 N.C. 140 |
| Parties | CARD et al. v. FINCH et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Franklin County; Webb, Judge.
Ejectment by A. H. Card and others against J. H. Finch and another. From a judgment for plaintiffs, defendants appeal. Affirmed.
The right of a devisee, not made a party to a proceeding resulting in a judgment directing a sale of the testator's realty to pay debts, to maintain ejectment against the purchaser, is not barred by any time other than that prescribed by the statute of limitations.
This was an action of ejectment, brought by the plaintiffs Georgiana Card, and Gertie and Willie Duke, minors represented by their next friend, against J. H. Finch and wife, for the possession of a tract of land in Franklin county, described in the pleadings and proof. Plaintiffs, who are the daughter and grandchildren, respectively, of one Peter F. Debnam, claim under the will of said Debnam, which will was duly probated and recorded on the 10th of October 1870; the said Georgiana Card and Elizabeth Duke, mother of the minor plaintiffs, being the devisees in remainder under the said will. The defendants claim title under a sale of the lands of said Peter F. Debnam to make assets to pay his debts; deed by a commissioner of the court under said proceedings and mesne conveyances. Hence both parties claim under a common source of title. It was admitted that said Peter F. Debnam died seised and possessed of the tract of land in question in 1870, devising the same to his wife, Mary A. Debnam, for life, with remainder to plaintiffs, and appointing said Mary F. Debnam executrix. It was also admitted that said Mary A. Debnam renounced her right to qualify as executrix and dissented from the will and had her dower duly allotted to her in said lands, and that E. W Timberlake was appointed administrator c. t. a. upon said estate, and qualified in due form in 1884. In October, 1884 said E. W. Timberlake, administrator c. t. a. of said Peter F. Debnam, brought a special proceeding against the widow, Mary A. Debnam, and the heirs at law of said Peter F. Debnam, who were named in the petition and summons; said heirs at law being the children of a first marriage, while the plaintiffs were the children of a second marriage with said Mary A. Debnam. From the petition and summons in this special proceeding it appears that plaintiffs were not named in the petition or summons, and the record does not disclose that summons was ever served upon them, or any one representing them. Said Georgiana Card and Elizabeth Duke were then adults and married.
It appears in said special proceeding, from the decree of the court ordering the sale, that: etc. It also appears that the sale was made, regularly reported, and confirmed; the court finding that the land brought a fair and reasonable price. It further appears from the final account of the said administrator that the proceeds of said sale were applied to the payment of the debts and costs of administration of said estate, and were insufficient to discharge the same. The cause came on for hearing before Judge Webb, who upon the foregoing facts and records instructed the jury to find for their verdict that plaintiffs were entitled to recover the land "subject to defendants' equities to be hereafter adjusted." To this instruction defendants excepted. His honor, upon the coming in of the verdict, rendered judgment declaring plaintiffs' right to recover the land and ordered a reference to F. W. Bickett, Esq., to ascertain the amount of the debts paid by the administrator, the taxes and value of the betterments; defendants having filed a petition to be allowed same. To this judgment defendants excepted. Upon the coming in of the report of the referee, no exceptions were filed, and it was duly confirmed; Judge Jones rendering judgment upon said report, directing that a sufficient number of the annually accuring installments of rent, beginning January 1, 1886, that being the time at which defendants had possession, be applied to the payment of the sum found to be due for permanent improvements before any application of rents be made to the debts, interest, and taxes. That, after paying from the installments of rent first accruing the permanent improvements, the rents be applied annually as they accrue to the interest on the debt and the taxes paid by defendants and interest, and then in reduction of the principal. It was ascertained by a calculation that the sum of $297.61 remained due, which was declared to be a lien upon the land, and directions were given by which its payment would be enforced. To the mode of applying the rents, defendants duly excepted, and from the final judgment appealed.
W. H. Ruffin, for appellants.
F. S. Spruill, for appellees.
CONNOR, J. (after stating the case.)
The question which lies at the threshold of this appeal is whether, as to the plaintiffs, the proceeding instituted by Judge Timberlake, administrator of P. F. Debnam, and the judgments and decrees rendered therein, are absolutely void and subject to collateral attack, or whether they are merely voidable, subject to attack only by a direct proceeding for that purpose. If the proceeding and judgment are void quoad the plaintiffs, many of the interesting questions raised by defendants and argued in the brief do not arise, because it is elementary learning that no right or title can be acquired under or by virtue of a void proceeding or judgment. We have given the brief and argument of the learned counsel for defendants a careful examination and consideration. By reason of an accident for which he was in no wise responsible, we were not favored with an oral argument. The general principles underlying the case, and upon which the rights of the parties depend, are well settled and elementary. They are clearly and forcibly stated in the briefs. Whatever difficulty may be found in disposing of the appeal consists in the application of such principles and reviewing the authorities cited and relied upon by defendants' counsel. We think that upon such examination the difficulties suggested are more apparent than real. It is an elementary proposition of public law that no man shall be deprived of his life, liberty, or property except by the law of the land, or, as sometimes expressed, due process of law, which is defined to be the judgment of a court of competent jurisdiction, after an opportunity to be heard is given the parties. It is axiomatic, at least in American jurisprudence, that a judgment rendered by a court against a citizen affecting his vested rights in an action or proceeding to which he is not a party is absolutely void, and may be treated as a nullity, whenever it is brought to the attention of the court. We think that no case can be found in the courts of this country, state or federal, in which this principle is questioned. Certainly in this jurisdiction it is fundamental. Reade, J., in Doyle v. Brown, 72 N.C. 393, says: To the same effect is Condry v. Cheshire, 88 N. C. 379 . Smith, C.J., in Lynn v. Lowe, 88 N.C. 478, on page 482, says: etc. Shepherd, J., in Harrison v. Harrison, 106 N.C. 282, 11 S.E. 356, says: Many other cases might be cited to the same effect if necessary.
The learned counsel for defendant does not controvert this elementary principle. He calls...
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