Mcdonald v. Hoffman

• Decision Date: 19 October 1910
• Citation: 153 N.C. 254,69 S.E. 49
• Court: North Carolina Supreme Court
• Parties: McDONALD et al. v. HOFFMAN et al.

69 S.E. 49

(153 N.C. 254)

McDONALD et al.

v.HOFFMAN et al.

Supreme Court of North Carolina.

Oct. 19, 1910.

1. Judgment (§ 497^*)—Collateral Attack —False Recitals in Judgment—Remedy.

A judgment reciting that personal service of summons was made may not he collaterally attacked on the ground that summons was not served, but the remedy is by motion in the action to set aside the judgment.

[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 937, 938; Dec. Dig. § 497.*]

2. Mortgages (§ 538*)—Foreclosure—Title of Purchaser — Irregularity in Judgment.

A purchaser at a mortgage foreclosure sale may rely on the judgment, and his title is not affected by irregularities in the proceedings of which he had no knowledge or opportunity to inform himself.

[Ed. Note.—For other cases, see Mortgages, Cent. Dig. § 1559; Dec. Dig. § 538.*]

3. Appeal and Error (§ 880*)—Questions Reviewable—Questions Not Affecting Party Appealing.

The court, on appeal by one defendant, will not consider exceptions affecting codefendants only.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3584-3590; Dec. Dig. § 880.*]

Appeal from Superior Court, Cumberland County; W. R. Allen, Judge.

Action by H. F. McDonald and another against John Hoffman and others. From a Judgment for plaintiffs, defendant Mary It. Hall appeals. Affirmed.

On her application, Mary R. Hall was made a party, and she claimed the title in fee to the land described. His honor made the following findings of fact:

(1) That on the 14th day of February, 1870, Charles J. Williams and others conveyed the lands described in the complaint to the defendant Mary R. Hall, by deed which is registered in Book O, No. 3, page 214, of the register's office of Cumberland county.

(2) That on the 22d day of December, 1887, the said Mary R. Hall and her husband, Thomas G. Hall, conveyed said lands to E. J. Lilly, now deceased, by mortgage deed to secure a debt recited therein, which said mortgage deed Is registered in Book I, No. 3, page 384, in said office.

(3) That thereafter, default being made in the payment of the debt secured in said mortgage, an action was instituted in the superior court of said county by H. W. Lilly and R. T. Gray, executors of E. J. Lilly, against the said Thus. G. Hall and wife, Mary R. Hall, to foreclose said mortgage, and at September term, 1899, of said court, a decree was rendered therein condemning said land to be sold, appointing J. C. MacRae, Jr., commissioner to make such sale; that said land was sold by said MacRae under said decree, and report thereof was duly made, and at February term 1900, of said court, said sale and said report were duly confirmed, and it was ordered that the said MacRae execute a deed, conveying said land to H. W. Lilly and R. T. Gray, executors of E. J. Lilly, they being the purchasers at said sale; that the summons in said action has been lost, but the decree rendered therein at September term, 1S99, adjudged that the said Thomas G. Hall and Mary R. Hall had been served with summons.

(4) That pursuant to said final decree the said J. C. MacRae, Jr., commissioner, on February 24, 1900, conveyed said lands to said II. W. Lilly and R. T. Gray, executors of E. J. Lilly by deed which was registered in said county in Book G, No. 5, page 570.

(5) That on January 2, 1905, said H. W. Lilly and R. T. Gray, executors of E. J. Lilly, conveyed said lands to C. II. McLauchlin, by deed which was registered in said county in Book Y, No. 5, page 452.

(6) That on the said 2d day of January, 1905, the said C. II. McLauchlin and wife conveyed said lands to H. W. Lilly and R. T. Gray, executors of E. J. Lilly, by a deed of mortgage to secure a debt recited therein, which deed is registered in said county in Book Y, No. 5, page 453.

(7) That thereafter, default having been made in the payment of the debt secured in the said mortgage, said lands were sold under the power contained therein, at which sale John Underwood became the purchaser, and pursuant to said power, on the 20th day of August, 1907, said H. W. Lilly and It, T. Gray, executors of E. J. Lilly, conveyed said lands to said Underwood by deed which was registered in Book M, No. 0, page 414, in said office. This finding is made subject to exceptions of the defendants which will appear In case on appeal.

(8) That on the 5th day of September, 1907, said John Underwood and wife conveyed said land to the plaintiff H. F. McDonald by deed which is registered in Book M. No, 0. page 416, in said office.

Upon the facts as found by him, his honor rendered judgment that the plaintiff McDonald was the owner in fee of the hind and entitled to the possession, subject only to his mortgage to his coplaintiff, John Underwood. From this judgment, Mary R. Hall appealed. The errors assigned by her are: (1) The reception in evidence of the mortgage deed from Charles McLauchlin and wife to H. W. Lilly and R. T. Gray, executors of E. J. Lilly, given to secure balance of purchase money, upon the ground that the private examination was not taken by a proper officer using a proper seal. (2) To the final decree and records of the action to foreclose the mortgage of Thos. G. Hall and wife (the appellan...