Henderson County v. Johnson

• Decision Date: 12 October 1949
• Docket Number: 164
• Citation: 55 S.E.2d 502,230 N.C. 723
• Parties: HENDERSON COUNTY v. JOHNSON et al.
• Court: North Carolina Supreme Court

55 S.E.2d 502

230 N.C. 723

HENDERSON COUNTY v. JOHNSON et al.

No. 164

Supreme Court of North Carolina

October 12, 1949

Motion by William Johnson, Jr., and wife to vacate judgment and order of confirmation in tax certificate foreclosure and to redeem land.

This action was instituted 5 September, 1934 to foreclose tax certificates for the years 1929-1930-1931. Decree of foreclosure was entered 15 December, 1947 and order of confirmation on 27 February, 1948. Deed was executed to Henderson County 16 March, 1948, and thereafter conveyed by Henderson County to Mrs. B. B. Hill by deed dated 2 July 1948, and duly spread upon the public registry of the County.

Motion to vacate was filed herein 6 December, 1948, grounded on the allegation that no valid service was obtained in the cause and that the judgment of foreclosure and order of confirmation were void for want of jurisdiction.

The motion was denied by the Clerk and on appeal to the Judge of the Superior Court, elaborate findings of fact were made and the judgment of the Clerk was ratified and confirmed.

Movants appeal, assigning as error 'The Court erred in its conclusions of law and in signing the judgment as appears in the record'.

L B. Prince and M. F. Toms, Hendersonville, for plaintiff appellee.

R L. Whitmire, Hendersonville, for defendants-movants, appellants.

STACY Chief Justice.

The question for decision is the sufficiency of the record to support the judgment. There are no exceptions to any of the findings of fact. Hence, only the face of the record is presented for inspection and review. In re Collins' Estate, 226 N.C. 412, 38 S.E.2d 160; Wilson v. Robinson, 224 N.C. 851, 32 S.E.2d 601; Vestal v. Moseley Vending Machine Exchange, 219 N.C. 468, 14 S.E.2d 427; Brown v. L. H. Bottoms Truck Lines, 227 N.C. 65, 40 S.E.2d 476; Harney v. Mayor and Board of Com'rs of Town of McFarlan, 229 N.C. 71, 47 S.E.2d 535; Rhodes v. Asheville, 229 N.C. 355, 49 S.E.2d 638; Parker v. Duke University, 230 N.C. 656, 55 S.E.2d 189.

In addition to the facts found by the Judge, which are fortified by recitals in the judgment and the commissioner's deed Powell v. Turpin, 224 N.C. 67, 29 S.E.2d 26; Everett v. Newton, 118 N.C. 919, 23 S.E. 961; G.S. s 98-16, the regularity of the proceeding is further supported by the principle omnia rite acta praesumuntur. Williamson v. Spivey, 224 N.C. 311, 30 S. E.2d 46; Downing v. White, 211 N.C. 40, 188 S.E. 815; Starnes v. Thompson, 173 N.C. 466, 92 S.E. 259; State v. Mann, 219 N.C. 212, 13 S.E.2d 247, 132 A.L.R. 1309. 'A prima facie...