Quevedo v. Deans, 674

Docket NºNo. 674
Citation234 N.C. 618, 68 S.E.2d 275
Case DateDecember 12, 1951
CourtUnited States State Supreme Court of North Carolina

Page 275

68 S.E.2d 275
234 N.C. 618
QUEVEDO et al.
v.
DEANS et al.
No. 674
Supreme Court of North Carolina.
Dec. 12, 1951

Johnson & Johnson, Lumberton, for plaintiff appellees.

George T. Deans, defendant, in propria persona, and Varser, McIntyre & Henry, Lumberton, for defendants Tolar.

BARNHILL, Justice.

Did the court err (1) in making additional findings of fact, and (2) in holding that the plaintiffs are the owners of the land in controversy? These are the questions the defendants pose for decision. Each must be answered in the negative.

As the cause came on for hearing before the trial judge on exceptions to the report of the referee, he was not bound by the findings of fact or [234 N.C. 621] conclusions of law made by the referee. Instead he, in the exercise of his supervisory power, was vested with full authority to amend, modify, set aside, confirm, or disaffirm the report. This included the authority to make such additional findings of fact as he deemed advisable. Keith v. Silvia, 233 N.C. 328, 64 S.E.2d 178.

It is now settled law in this jurisdiction that in a tax foreclosure action the owners of the equity of redemption must be made parties to the action and served with process. Board of Com'rs of Roxboro v. Bumpass, 233 N.C. 190, 33 S.E.2d 144; Eason v. Spence, 232 N.C. 579, 61 S.E.2d 255, 717; City of Wilmington v. Merrick, 231 N.C. 297, 56 S.E.2d 643.

The failure to make the owners parties to the action and have them served with process is not a mere irregularity or defect of procedure. It is the omission of an essential requirement of due process which renders the whole proceedings, as to those not parties, void and of no effect. Board of Com'rs of Roxboro v. Bumpass, supra; Eason v. Spence, supra.

That the validity of the judgment in the foreclosure proceeding was subject

Page 278

to challenge in this action is well settled by the decisions of this Court. Powell v. Turpin, 224 N.C. 67, 29 S.E.2d 26; Hill v. Stansbury, 224 N.C. 356, 30 S.E.2d 150; City of Monroe v. Niven, 221 N.C. 362, 20 S.E.2d 311.

While it is true that one who buys at a judicial sale is required only to look to the record to see if the court had jurisdiction of the parties and the subject matter of the proceeding and that the judgment authorized the sale, Graham v. Floyd, 214 N.C. 77, 197 S.E. 873, this rule, even if applicable here, can bring little comfort to the defendants. The only persons named as parties defendant were dead. The summons as to...

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9 cases
  • Page v. Miller, 21
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • February 24, 1960
    ...by an action instituted against their father after his death. To do so, it was necessary that process be served on them. Quevedo v. Deans, 234 N.C. 618, 68 S.E.2d 275; Board of Com'rs of Roxboro v. Bumpass, 233 N.C. 190, 63 S.E.2d 144; Powell v. Turpin, 224 N.C. 67, 29 S.E.2d 26; Crandall v......
  • Hall v. City of Fayetteville, 600
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • June 4, 1958
    ...referee, or he could make additional findings of fact and enter judgment on the report as amended by him. G.S. § 1-194; Quevedo v. Deans, 234 N.C. 618, 68 S.E.2d 275; Keith v. Silvia, 233 N.C. 328, 64 S.E.2d 178. It is manifest from a study of the judgment of the learned Judge, who is now d......
  • Boone v. Sparrow, 387
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • April 16, 1952
    ...him no relief.' Foy v. Haughton, 85 N.C. 168, 169. ' City of Wilmington v. Merrick, 234 N.C. 46, 65 S.E.2d 373, 375; Quevedo v. Deans, 234 N.C. 618, 68 S.E.2d The question whether these defendants are subrogated to any right of the City of Kinston to prosecute a foreclosure action for the c......
  • BENEFICIAL MORTGAGE CO. OF NORTH CAROLINA INC. v. Barrington, COA03-512.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • May 4, 2004
    ...found no pig. For him the situation is unfortunate. It is nonetheless a situation for which the law affords no relief." Quevedo v. Deans, 234 N.C. 618, 622, 68 S.E.2d 275, 278 We do not believe, as defendants contend, that this holding places an unreasonable burden on title searches in Nort......
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