Harris v. Bennett
| Decision Date | 07 November 1912 |
| Citation | 76 S.E. 217,160 N.C. 339 |
| Parties | HARRIS et al. v. BENNETT et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Nash County; Carter, Judge.
Action by N. J. Harris and others against J. G. Bennett and others. Judgment for plaintiffs. Defendants appeal. Reversed, with directions to dismiss.
Remaindermen may at once proceed to vacate a judgment for sale of the land to which they were parties, so that their delay before death of the life tenant is to be considered on the question of laches.
T. T Thorne and Bunn & Spruill, both of Rocky Mount, for appellants.
Jacob Battle, of Rocky Mount, for appellees.
This action was brought by the plaintiffs to recover the possession of the land described in their complaint, it being a part of the "Culpepper place," formerly belonging to the late Nicholas W. Arrington, who, by his will, devised it to his daughter Tempie Ann Harris for life, with remainder to her heirs, who are the plaintiffs. Mr. Arrington died in the year 1865 insolvent. He owed a very large sum, which his assets were wholly insufficient to pay. He appointed L. N. B and L. F. Battle his executors, who qualified as such, and in 1868 commenced a special proceeding before the clerk of the superior court for a sale of his realty to pay his debts. The land was sold, including the "Culpepper place," and the sale was confirmed as to all of it except that place, and a resale ordered as to it. One of the executors having resigned, and the other having been removed, Hon. B. H. Bunn was appointed administrator de bonis non with the will annexed. Under the order of the court just mentioned, he sold the land, and it was purchased by Mrs. Tempie Ann Harris for $2,010, and she assigned her bid to Enos Ward and his associates, and the deed for the same was made to them. The defendants claim by mesne conveyances under them. In a second cause of action the plaintiffs seek to determine adverse claims to real property, or to quiet their title by removing a cloud therefrom. Their right to relief, as seems to be conceded by all the counsel, depends upon the validity of the proceeding for the sale of the lands of Mr. Arrington, to which we have referred. Plaintiffs attack these proceedings upon the ground that they were not parties thereto, and therefore are not bound by the judgment therein rendered and, if the fact be true, or in law they are not to be regarded as parties, their deduction follows inevitably. Stancill v. Gay, 92 N.C. 462; Harrison v. Harrison, 106 N.C. 282, 11 S.E. 356. But we think that they are bound by that proceeding and that they cannot successfully assail it in this suit, nor can they assert its invalidity against the defendants, whose predecessors in the title were purchasers for value and without notice of any material irregularity therein.
The record of the proceeding for the sale of the land, which was made a part of the case, discloses that a summons was issued but not served, but that the defendants named in the writ came in and answered. This is equivalent to appearance, and waives the service of process, the object of which is to bring the defendants into court and to subject them personally by service of the writ to its jurisdiction. If they come in voluntarily and appear or answer, the same result is accomplished. A general appearance cures all defects and irregularities in the process. Wheeler v. Cobb, 75 N.C. 21; Penniman v. Daniel, 95 N.C. 341; Roberts v. Allman, 106 N.C. 391, 11 S.E. 424; Moore v. Railroad, 67 N.C. 209. In the case last cited Justice Rodman said: This is elementary learning. But counsel for plaintiffs in an exceptionally able and learned brief contended that, in fact, no answer was filed, or any pleading, which the law will regard as an answer. The complaint was filed in due and proper form, and, as appears from the judgment roll, a paper purporting in form and substance to be the joint answer of the defendants was also filed. It was not signed, but, so far as the record of the proceedings shows, it was on file as a paper in the cause and remained on file, as part of the judgment roll, for many years. The court recognized it as the answer, for it is recited in the judgment itself that the case was heard upon "complaint and answer," and that they formed the basis of the judgment, and the facts therein stated were those upon which the court acted. Howerton v. Sexton, 90 N.C. 581. The fact that the answer was not signed is a mere irregularity, perhaps an inadvertence, and does not affect the validity of the proceedings. We held in Rollins v. Henry, 78 N.C. 342, and Keener v. Goodson, 89 N.C. 273, that the provision requiring the signature of the judge to a judgment was merely directory, and the failure to sign would not invalidate it. Howerton v. Sexton, supra.
It is also objected that there was no personal service of the summons upon the plaintiffs who, at the time, were infants, and no order appointing a guardian ad litem to defend the proceeding in their behalf. The omission to serve the infants with process is cured by Revisal, § 441, as we will hold that they were represented by a guardian ad litem. It sufficiently appears, on the face of the record, that B. H. Sorsby, Jr., joined in the answer as guardian ad litem of the minor children of Tempie Ann Harris, who herself united with the other defendants in the answer, and it also appears that the court recognized B. H. Sorsby, Jr., as guardian ad litem for the infants, it having acted upon the answer as a pleading in the cause upon which the judgment was, in part, based. In Sumner v. Sessoms, 94 N.C. 371, discussing a similar question, the court said: Hare v. Holloman, 94 N.C. 14. And in Hughes v. Pritchard, 153 N.C. 135, 69 S.E. 3, 138 Am. St. Rep. 649, we said: Rackley v. Roberts, 147 N.C. 204, 60 S.E. 975. In Carter v. Rountree, 109 N.C. 29, 13 S.E. 716, where it appeared that an infant was not personally served with process in a proceeding to sell lands for assets, but service was made upon his mother and a guardian ad litem was appointed to protect his interests, who answered for him, it was held that the judgment would not be disturbed, as the irregularity was cured by the statute. Code,§ 387; Revisal, § 448; Cates v. Pickett, 97 N.C. 21, 1 S.E. 763; Fowler v. Poor, 93 N.C. 466; Coffin v. Cooke, 106 N.C. 376, 11 S.E. 371; Yarborough v. Moore, 151 N.C. 116, 65 S.E. 763; Williamson v. Hartman, 92 N.C. 236; Howerton v. Sexton, 90 N.C. 581. We have held in a series of cases that the court will not vacate an irregular judgment against an infant as of course, and it will not do so when it appears from the record, or otherwise, that the infant has suffered no substantial wrong, and the rights of innocent third parties, who have purchased for value and without notice, have intervened and will be prejudiced. Syme v. Trice, 96 N.C. 243, 1 S.E. 480; Williamson v. Hartman, supra; Howerton v. Sexton, supra.
This is an action to quiet title by declaring void the judgment sale, and conveyance under which defendants deraign their title, and in that view of it the plaintiffs cannot...
To continue reading
Request your trial