Clark v. Carolina Homes, Inc.
| Decision Date | 20 May 1925 |
| Docket Number | 391. |
| Parties | CLARK v. CAROLINA HOMES, INC. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Guilford County; McElroy, Judge.
Submission of controversy without action between S. C. Clark and the Carolina Homes, Inc. Judgment for defendant, and plaintiff appeals. Reversed and remanded.
Jurisdiction of land outside county in which proceedings were brought may be raised only by motion to change venue.
This is a submission of controversy without action under C. S. § 626 wherein plaintiff seeks to require defendant to accept and pay for certain land in Guilford county, according to the terms of a written contract of sale, and defendant declines to accept and pay the contract price therefor on the ground that plaintiff's title to said lands is defective. Judgment for defendant. Reversed and remanded.
The parties stipulated that the title offered was in fee simple and indefeasible, except as to defects alleged by defendant which may be summarized as follows: (1) No power of sale given to the executor, Greensboro Loan & Trust Company, in the will of O. R. Cox, deceased, who was an owner of locus in quo at the time of his death. (2) That the clerk of the superior court of Randolph county had no jurisdiction to entertain the special proceeding entitled "Greensboro Loan & Trust Company, Executor, v. Sarah E. Cox, et al.," and to make and confirm the orders of sale therein. (3) That the foreclosure of the Steele mortgage was invalid, for that the sale was conducted in the city of High Point at the Wachovia Bank & Trust Company building.
It appears from the agreed facts herein that a suit was instituted in Randolph superior court, and a decree entered in 1913, construing the will of O. R. Cox, deceased.
In 1917 the Greensboro Loan & Trust Company, executor of O. R. Cox filed its petition before the clerk of Randolph superior court to sell the realty, so as to make a distribution thereof in accordance with the will of O. R. Cox. deceased, as construed in this decree. The said will, among other provisions, contains the following:
The locus in quo is a part of the O. R. Cox estate, and is situate in the county of Guilford and in the city of High Point, but not adjoining the Wachovia Bank & Trust Company building site.
In plaintiff's title there in a mortgagee's deed executed by one E. D. Steele, resulting from a sale under the power of sale contained in a mortgage which did not specify the place of sale in case of default. The sale was had, however, in front of the Wachovia Bank & Trust Company building in High Point, and this is a prominent and conspicuous place, where sales customarily take place.
The mortgagor, Erie H. Hedgecock (who had assumed the mortgage indebtedness by special contract), was present at the sale, and made no objection to the sale, and the lands brought an adequate price.
The trial court rendered judgment in favor of the defendant on all questions presented, and plaintiff excepted and appealed.
R. C. Strudwick, of Greensboro, and Frank Nash, of Raleigh, for appellant.
Austin & Jerome, of High Point, for appellee.
The will of O. R. Cox, deceased, did not confer on the Greensboro Loan & Trust Company, the executor, the power of sale of the lands devised. This will, however, did enjoin upon the executor a duty to carry out its provisions, and it directed the "apportionment" of this estate, both real and personal, to be made by the president, secretary, and treasurer of the Greensboro Loan & Trust Company, providing that one other, a disinterested party, might be called in by these officers of the executor, if they desired any assistance. In the suit in Randolph superior court instituted by the executor against the devisees of O. R. Cox, for a construction of this will, and for advice as to the proper administration of said estate, a decree was rendered in 1913, wherein it was adjudged that the execcutor should distribute said property in accordance with this decree. This decree determined the intention of O. R. Cox to be that his wife, Sarah E. Cox, and his children, other than John Clyde Cox and Lewis Tax Cox, should first be made equal with A. F. Cox in the distribution of his estate out of the real and personal property other than his home place and certain personal effects on the premises, and that the balance of his real and personal property should be equally divided among his wife and children, and that, if John Clyde Cox and Lewis Tax Cox failed to comply with certain conditions named in the will, then the personal property and real estate given to Sarah E. Cox for life should be divided equally among all the children of O. R. Cox, deceased, or their heirs, at her death. The testator desired that these officers of his executor, whoever they might be at the time of his death, should make this "apportionment" by actual partition, if practicable. It is also clear that he did not intend to require them to make an actual partition, if such could not be had without injury to the several devisees, or any of them. He desired equality in this division on the basis named in his will. The testator named for this important duty those parties who had been elected officers of the Greensboro Loan & Trust Company. The "apportionment" was a duty of the executor to be performed, if actual partition was practicable, by its named officers. This provision in the will was only the machinery for the "apportionment" by actual partition, instead of leaving this to be provided for by the board of directors. These officers, so designated, found that an actual partition could not be had without injury to the several parties interested; they were clothed with the duty and the power to determine this, and, when they so determined, their decision was accepted by the executor. This appears in the petition filed in the partition proceeding and, is admitted in all the answers filed, and then found as a fact by the court. These officers had performed their duty as fully as if they had found it to be practical to make actual "apportionment" or partition. In this situation the question was not presented to the clerk of the superior court of Randolph county for him to determine whether they ought to make the apportionment, or not.
The executor desiring to perform its duty, as set out in the will, and as determined in the decree rendered by the superior court of Randolph county construing the said will and advising the executor, applied to the clerk of the superior court of Randolph county in 1917 upon petition in due form, asking for partition by sale in order to complete the settlement of the estate committed to it by the will of O. R. Cox. In due course an order of sale was entered, executed, and title made to plaintiff for the locus in quo upon payment of his bid, which was a fair value for the property. This partition proceeding is attacked in the instant case by the defendant, as noted above. This attack on the judgment in the partition proceeding is indirect and collateral. Only void judgments are subject to such an attack. Moore v. Packer, 174 N.C. 665, 94 S.E. 449; Reynolds v. Cotton Mills, 177 N.C. 412, 99 S.E. 240, 5 A. L. R. 284.
The invalidity must appear affirmatively, either on the face of the record or in one of the accepted ways, in order to permit a successful collateral attack. McKellar v. McKay, 156 N.C. 283, 72 S.E. 375; Harrison v. Hargrove, 109 N.C. 346, 13 S.E. 939; Smathers v. Sprouse, 144 N.C. 637, 57 S.E. 392; Brickhouse v. Sutton, 99 N.C. 103, 5 S.E. 380, 6 Am. St. Rep. 497; Doyle v. Brown, 72 N.C. 393; Lynn v. Lowe, 88 N.C. 478; Burgess v. Kirby, 94 N.C. 575, 579.
There is, in this state, one apparent exception to the rule set forth in these cases as applied to probate courts. If the person alleged to be dead is not, in fact, dead, this prevents the probate court from granting letters of administration or administering his estate. Springer v. Shavenger, 116 N.C. 12, 21 S.E. 397, 33 L. R. A. 772, 47 Am. St. Rep. 791; Springer v. Shavender, 118 N.C. 33, 23 S.E. 976, 54 Am. St. Rep. 708; Fann v. R. R., 155 N.C. 140, 71 S.E. 81; Bernhardt v. Brown, 119 N.C. 507, 26 S.E. 162, 36 L. R. A. 402; Trimmer v. Gorman, 129 N.C. 163, 39 S.E. 804; Dowd v. Watson, 105 N.C. 476, 11 S.E. 589, 18 Am. St. Rep. 920; Batchelor v. Overton, 168 N.C. 398, 74 S.E. 20.
Bailey on Jurisdiction, vol. 1, p. 182, classes North Carolina as one of the states holding that decrees of probate courts are entitled to the same presumptive validity as decrees of courts of general jurisdiction, but notes Springer v. Shavender, supra, as establishing the exception.
A void judgment is not a judgment, and may always be treated as a nullity. It lacks some essential element; it has no force whatever; it may be quashed ex mero motu. Stallings v. Gully, 48 N.C. 344; McKee v. Angel, 90 N.C. 60; Carter v. Rountree, 109 N.C. 29, 13 S.E. 716; Mann v. Mann, 176 N.C. 353, 97 S.E. 175; Moore v. Packer, 174 N.C. 665, 94 S.E. 449; Burgess v. Kirby, supra; McKellar v. McKay, supra; Harrison v. Hargrove, supra; Smathers v. Sprouse, supra; Balk v. Harris, 122 N.C. 64, 30 S.E. 318, 45 L. R. A. 257; Hervey v. Edmonds, 68 N.C. 243; May v. Getty, 140 N.C. 310, 53 S.E. 75; Dalton v. Webster, 82 N.C. 279.
A lack of...
To continue reading
Request your trial