Harrison v. Hargrove

• Decision Date: 30 March 1897
• Citation: 26 S.E. 936,120 N.C. 96
• Parties: HARRISON et al. v. HARGROVE et al.
• Court: North Carolina Supreme Court

26 S.E. 936

120 N.C. 96

HARRISON et al. v. HARGROVE et al.

Supreme Court of North Carolina

March 30, 1897

Appeal from superior court, Vance county; Coble, Judge.

Action by Judith Harrison and others against Mary L. Hargrove and others to recover land. There was a judgment for defendants and plaintiffs appeal. Affirmed.

Where a court of competent jurisdiction of the subject-matter recites in its judgment that service of summons was had on defendants, who are subject to its jurisdiction, and the judgment is regular on its face, an innocent purchaser of property under such judgment will be protected, though the judgment be afterwards set aside because, in point of fact service of summons had not been made.

J. B Batchelor, for appellants.

M. V Lanier, T. T. Hicks, and R. O. Burton, for appellees.

MONTGOMERY J.

Lunsford A. Paschall, administrator de bonis non with the will annexed of Robert Harrison, filed a petition against the widow of the testator and his children and heirs at law, among whom were the plaintiffs in this action, for the purpose of obtaining a decree of sale of the tract of land which is the subject of this action, to make assets for the payment of the debts of the decedent. The decree of sale was made on the 3d of December, 1870, by the clerk of the court, and in the decree there was a recital, in substance, that personal service of the summons had been made upon defendants, in the following words: "That the nonresident defendant, George Harrison, has been duly notified by publication to appear and answer," etc., "and that the resident defendants have been duly served with process summoning them to appear and answer." The pleadings show that George Harrison, one of the children and heirs at law of the testator, and one of the defendants in the above-mentioned special proceeding, was a nonresident of the state of North Carolina at the time of filing the petition, and that the other defendants in that proceeding, including the plaintiffs in this action, were residents of the state. The defendants' testator and devisor was the purchaser of the land at the sale by Paschall, the administrator of Robert Harrison. A report of the sale was made, and in due time confirmed. The proceedings, from the decree of sale to the final decree confirming the sale and ordering the title to be made to the purchaser, inclusive, were regular in all respects. The plaintiffs, in 1887, after the death of their mother, instituted this action to recover possession of the tract of land, claiming the same as devisees under the will of their father, Robert Harrison. At the time of the commencement of this action the defendants' testator and devisor, T. L. Hargrove, was living, and, in his answer to the complaint of the plaintiffs, set up as a defense the deed of the administrator, Paschall, to him, and the decree of the court ordering the sale, and which recited that personal service of the summons had been made on the defendants in the special proceeding, among whom the plaintiffs in this action were included, and also the decree confirming the sale. The plaintiffs, finding these decrees in the special proceeding in their way, and apprehending that they could not proceed with the action as long as those decrees should remain in existence, made a motion in the special proceeding under which the land was sold to set aside and vacate the order of sale on the ground that no service of summons had ever been made upon them in that proceeding, and that they had made no appearance in said proceeding or had any notice thereof. The clerk heard this motion, and from his ruling there was an appeal, which was heard by Judge Graves, who, after finding the facts, rendered judgment in the following words: "It is considered by the court, as a matter of legal inference, that the purchasers at the administrator's sale had notice of the order of sale and of the want of proper advertising of sale. Therefore it is considered and adjudged by the court that the said order of sale made on the 3d of December, 1870, was irregular and not according to the course of the court as to the persons named as defendants, to wit, Rebecca Harrison, Judith W. Harrison, Nancy Dement (formerly Nancy Harrison), and Mary Harrison, and is void as to them, and that the same be canceled and vacated as to them by this order, and that all the orders heretofore made in this action shall be allowed to remain upon the records for the purpose of protecting purchasers and others, so far as in law they afford protection. It is further considered that the movers recover their costs." From this judgment the defendants appealed to the supreme court. The appeal was heard at the February term, 1890, and is reported in 106 N.C. 282, 11 S.E. 356. In that appeal it does not appear that the question whether or not the decree of sale made in the special proceeding protected the defendant in his purchase, notwithstanding it was shown before Judge Graves when he vacated the judgment that in point of fact there had been no personal service of summons on the defendants, and that they had not appeared therein, was discussed. Whether Judge Graves' judgment, based upon the fact found by him that there had been no personal service of the summons in the special proceeding upon the defendants, and that they had made no appearance therein, could have had the effect of divesting the defendant of his rights acquired at his purchase at the administrator's sale, was not passed upon. Indeed, it seems upon reading the opinion that the point was not noticed. In the summary of facts made by the court it is not stated that the decree ordering the sale of the land recited service of the summons upon the defendants. The judgment of Judge Graves, however, was affirmed by this court. After the judgment of Judge Graves had been passed upon, this action was brought to trial, and judgment was had for the plaintiffs. Upon appeal to this court by the defendants, reported in 109 N.C. 346, 13 S.E. 939, the matter was disposed of on the sole ground of laches in the plaintiffs in bringing their action,--17 years having elapsed between the order of sale in the special proceeding and the commencement of this action,--and a new trial was granted. The action then came on for trial before Judge Coble, from whose ruling and judgment the present appeal comes. His honor charged the jury, in substance, that the purchaser at the administrator's sale (the defendants' testator and devisor) was protected by the decree under which the land was sold; the decree having recited that personal service of the summons had been made upon the defendants in the special proceeding for the sale of the land, and that the administrator, in his deed, conveyed to the purchaser a good title to the land, and that there was no evidence before the court that the purchaser had notice at the time of the purchase and confirmation of the sale that the defendants had not been served with summons. The language of his honor is as follows: "But the court instructs the jury that the decree under which the deed to T. L. Hargrove was made cannot be treated as having been set aside, so as to affect the right of the defendants who claim under T. L. Hargrove, deceased, who purchased at the sale, unless at the time he purchased and took his deed he had notice, in point of fact, that the plaintiffs in this action, who were defendants in the proceeding in which the order of sale was made, had not been served with process; and there is no evidence that said Hargrove had such notice. Wherefore the court instructs...