Rackley v. Roberts

• Decision Date: 25 March 1908
• Citation: 147 N.C. 201,60 S.E. 975
• Parties: RACKLEY et al. v. ROBERTS.
• Court: North Carolina Supreme Court

60 S.E. 975

147 N.C. 201

RACKLEY et al.

v.ROBERTS.

Supreme Court of North Carolina.

March 25, 1908.

1. Executors and Administrators — Sales Under Order of Court—Setting Aside.

A special proceeding for the sale of land by an administratrix cannot be attacked collaterally, on the ground that process was not served on the attacking party, since failure to make such service is merely an irregularity, the proper remedy for which is a motion to set aside the judgment; the attacking party, though a minor, having appeared by counsel and a guardian ad litem, who defended in her behalf.

2. Judicial Sales—Rights of Purchaser.

When there is a purchase under an order or judgment, the purchaser need only inquire if, upon the face of the record, the court apparently has jurisdiction of the parties and the subject-matter in order to be protected, provided he buys in good faith, and without notice of any actual defect.

Appeal from Superior Court, Duplin County; Biggs, Judge.

Action by Kate Rackley and others against P. M. Roberts. From a judgment for plaintiffs, defendant appeals. Judgment set aside, and new trial ordered.

This action was brought by the plaintiffs to recover a one-seventh interest in the land de scribed in the complaint. The tract of land originally belonged to Daniel Glisson, who died in April, 1880, leaving a will, in which a one-seventh interest in the said land was devised to the feme plaintiff. Mary Glisson, the widow of Daniel Glisson, qualified as his administratrix with the will annexed, and on November 2, 1881, instituted proceedings against the heirs and devisees of the testator for the sale of his lands for assets. Some of the defendants were personally served with process. It does not appear, except inferentially, that the plaintiff, who was Catherine Glisson, now Catherine Rackley, was personally served, but John L. Tew was appointed guardian ad litem of the said Catherine Glisson and other infants, and a summons was duly served upon him. In her petition the administratrix prayed that a summons with a copy of the petition be issued to each of the defendants.

An answer was filed as follows: "Mary Glisson, Adm'x of Daniel Glisson, plaintiff, v. H. J. Glisson and others, defendants. John L. Tew, guardian ad litem for Robert Ann Glisson and others, answering the complaint, says: (1) That according to their best information and belief the first allegation is not true, etc. (2) They deny the second allegation, etc. Whereupon the defendants pray that the proceeding be transferred to the superior court at term, in order that the issues of fact may be investigated, and that they may obtain such other and further relief as may seem just and according to law. [Name of Attorney], Attorney for Defendants Above Mentioned."

The answer avers fraud and collusion, and resists a sale upon the ground that it is not necessary. It is then stated in the record that "by consent of all parties" a reference was ordered to B. Witherington to take and state an account of the debts of Daniel Glisson, deceased, and then to ascertain the value of the personal property and report to the court. The referee filed his report, and upon it and the pleadings the clerk ordered that a sale of the land be made by the administratrix. At the sale F. M. Roberts, wife of J. B. Roberts, purchased the land for the sum of $1,450, and a deed was executed by the administratrix to her February 16, 1883. It was admitted that the purchaser has ever since been in possession of the land, receiving the rents and profits, except the part covered by the dower, and she has been in possession of that part since 1890. The defendants moved to nonsuit the plaintiffs. The motion was overruled, and the defendants excepted. The issues with the answers thereto were as follows:

"(1) Was the plaintiff, Mrs. Kate Rackley, served with summons in the proceeding to sell the lands of Daniel Glisson for assets? Answer: No.

"(2) When was the plaintiff Mrs. Kate Rackley born? Answer: May, 1862.

"(3) Was the plaintiff married before the above proceeding was commenced? Answer: Yes.

"(4) Is the plaintiff the owner of the lands described in the complaint, or any part thereof, or interest therein? Answer: Yes; undivided one-seventh interest, subject to the defendant's interest heretofore adjusted.

"(5) Does the defendant wrongfully withhold the possession of said lands or any part thereof from the plaintiff, and, if so, what part or interest? Answer: Yes; one-seventh undivided interest, subject to defendant's equity to be hereafter adjusted.

"(6) What is the annual rental value of said lands described in the complaint? Answer: $125."

It was agreed that the court should answer the fourth and fifth issues, as matter of law, according to the finding of the jury upon the other issues. The defendant's counsel requested the court to give several instructions to the jury, but it is not necessary, in the view taken by the court of the case, to set out the prayers or the instructions given by the court. From the judgment the defendant appealed.

Stevens, Beasley & Weeks, for appellant.

Kerr & Gavin, for appellees.

WALKER, J. (after stating the facts as above). The question presented in the record is whether the validity of the special proceeding for the sale of the land can be attacked collaterally in a separate suit like this, where the ground of the attack is that process was not served upon the feme plaintiff, who was a defendant in that proceeding and at the time a minor, and in whose behalf a guardian ad litem was regularly appointed and answered. It is true the plaintiff alleges that the judgment in the special proceeding was obtained by fraud and collusion, but there does not seem to be any evidence of it, and no issue was submitted upon that allegation. So far as appears or is found by the jury, the defendant, F. M. Roberts, purchased for value, and without notice of any irregularity in the proceeding. The jury by their verdict simply find that there was in fact no service of a summons upon the plaintiff Mrs. Kate Rackley; that she was at the time a minor, and was married before the proceeding was commenced; and that the annual rental value of the land is $125. Upon these findings the court was of the opinion, as matter of law, that the plaintiff is the owner of a one-seventh interest in the land, and that the defendant wrongfully withholds the same from her, and directed the other two issues to be answered accordingly, the parties having agreed that he might answer them as he should rule upon the law. He thereupon adjudged that the plaintiff was entitled to recover the said one-seventh interest. We do not think the special proceeding could be assailed by an independent action for mere irregularity. The plaintiff should have proceeded by motion in the cause to set aside the judgment as to her. Grant v. Harrell, 109 N. C. 78, 13 S. E. 718; Carter v. Rountree, 109 N. C. 29, 13 S. E. 716. Before the adoption of the reformed procedure in 1S68 a judgment in a proceeding to sell land for assets would not be set aside upon the application of a minor who had not been served with process, provided a guardian ad litem to defend his interests had been duly appointed, and there had been a real and bona fide defense in his behalf. Hare v. Hollomon, 94 N. C. 14, citing Matthews v. Joyce, 85 N. C. 258, and other cases. See, also, Cates v. Pickett, 97 N. C. 21, 1 S. E. 763; Sledge v. Elliott, 116 N. C. 712, 21 S. E. 797. It was said in Hare v. Hollomon that where infant defendants are not served with process, but the record shows that a guardian ad litem was appointed for them, who proceeded in the cause and defended their interests, the decree against the infants is not void, and cannot be collaterally impeached. This was said, of course, with reference to the practice prior to 1868. McGlawhorn v. Worthington, 98 N. C. 199, 3 S. E. 633; Brit-ton v. Mull, 99 N. C. 483, 6 S. E. 382; England v. Garner, 90 N. C. 197; Syme v. Trice, 96 N. C. 243, 1 S. E. 480; Coffin v. Cook, 106 N. C. 376, 11 S. E. 371; Tyson v. Belcher, 102 N. C. 112, 9 S. E. 634; Turner v. Shuffler, 108 N. C. 642, 13 S. E. 243. What is said in Carraway v. Lassiter, 139 N. C. 154, 51 S. E. 908, had reference to the special facts of the Several cases cited to support it. We will now refer to those cases. Moore v. Gidney, 75 N. C. 34, was a motion in the cause, and not an independent civil action. Gulley v. Macy, 81 N. C. 350, was a civil action in which fraud was alleged and shown, and it was further established that the purchasers, who were defendants, had notice of the plaintiff's equitable rights. In Young v. Young, 91 N. C. 359, there was no attempt to attack a prior proceeding; but the court in the original cause refused to construe the deed in question and to declare the nature of the trusts, because the parties had not been properly served with process. Stancill v. Gay, 92 N. C. 455, and Id., 92 N. C. 462, was a motion in the original cause. We may add also that what we said in Carraway v. Lassiter, supra, was not intended to change the doctrine as to the rights of innocent purchasers at judicial sales or to impair those rights, but the case, when considered with reference to its own facts and the authorities cited, will clearly appear to be in perfect accord with our previous...