Williams v. Johnson

• Decision Date: 25 April 1893
• Citation: 17 S.E. 496,112 N.C. 424
• Parties: WILLIAMS et al. v. JOHNSON et al.
• Court: North Carolina Supreme Court

17 S.E. 496

112 N.C. 424

WILLIAMS et al. v. JOHNSON et al.

Supreme Court of North Carolina

April 25, 1893

Appeal from superior court, Wake county; H. G. Connor, Judge.

Action by W. Gaston Williams and others against Emily Johnson and Marion Johnson for the recovery of land. From a judgment in plaintiffs' favor, defendants appeal. Reversed.

A petition for the sale of a decedent's land, filed by an attorney in behalf of the widow and heirs, resulted in a judgment for costs against petitioners, and an execution was issued, and the property sold thereunder. Held, that the judgment was not subject to either direct or collateral attack by the heirs, on the ground that the attorney had in fact no authority to represent them, since such authority is conclusively presumed as to persons who have acquired rights under the judgment in ignorance of his want of authority.

Batchelor & Devereux and Armistead Jones, for appellants.

George H. Snow and Battle & Mordecai, for appellees.

BURWELL J.

The lot of land in controversy in this action was owned at the time of his death, in 1851, by S.W. Williams, to whose widow Polly Williams, it was assigned as dower. She died in 1886. His heirs at law were his six children, three of whom, to wit, W. Gaston Williams, Frank N. Williams, and Mary J Smith, are plaintiffs, each claiming one sixth part of said lot. The children of a daughter, who died in 1878, and who was the wife of the plaintiff E. Jefferson Smith, are also plaintiffs, and claim one sixth part of said lot as heirs of their mother. The other two children of S.W. Williams are not parties to this action. It is alleged in the complaint that the defendants hold said lot under the widow, who died, as above stated, in 1886, and also under a deed made to the defendant Emily Johnson by T. F. Lee, sheriff of Wake county dated April 26, 1873; he having sold the lot, according to law, on April 7, 1873, under an execution issued to him from the superior court of said county against the widow and children of S.W. Williams, and also against I. J. Flowers the husband of one of the daughters, and Jefferson Smith, (one of the plaintiffs in this action,) the husband of another daughter, for a bill of costs amounting to $16.10, the consideration expressed in said deed being $18.05, bid by said defendant. It is further alleged that the judgment for costs upon which the said execution was issued was irregular and fraudulent. And the plaintiffs demand judgment--First, that the said judgment "be set aside, as to these plaintiffs, as being irregular and fraudulent;" second, that the deed from T. F. Lee, sheriff, to Emily Johnson, be delivered up for cancellation; and, third, that they are the owners of the land described in the complaint. The primary object of this action is therefore to have a judgment rendered against the plaintiffs in the superior court of Wake county in 1872 declared void because of fraud, and thus destroy the force and validity of defendant's title under the deed made to her by the sheriff.

In the complaint first filed, the plaintiffs only alleged their ownership of the lot in controversy, and that defendants unlawfully withheld the same from them, and demanded possession thereof. The amended complaint changes the object of their suit to that above stated; their learned counsel thus conceding, as it seems, that they cannot oust the defendants from the land until they have first had vacated, and set aside, the judgment, execution, and sheriff's deed thereunder, which constitute, as we think, the defendants' only muniment of title. Upon the evidence adduced, and under the instructions of his honor, the jury have found that this judgment against the plaintiffs was procured by the fraud of the widow, the life tenant, and that the defendant Emily Johnson had notice of this fraud when she bought the land at the execution sale made under said judgment; and because of this fraud, and defendant's notice thereof, it was adjudged that the judgment, execution, and deed were void. Upon the trial the counsel for the defendants contended that there was no evidence that their clients had any notice of the alleged fraudulent conduct of the widow, and that the evidence offered to establish that fraud was incompetent against them. His honor decided that the evidence offered to establish the alleged fraud was competent against the defendants, and that there was evidence from which the jury might infer that defendants had notice of that fraud, and he so instructed the jury.

In these respects we think he erred. There seems to be little conflict in the testimony offered by the parties on the trial, and the conflict is about matter that appears to us immaterial. It is alleged in the complaint, and admitted in the answer, that at the fall term, 1863, of the court of equity of Wake county, an ex parte petition was filed by the late Sion H. Rogers, a practicing attorney of that court, in behalf of the widow and heirs of S.W. Williams, (the husbands of the femes covert being also parties,) asking that a sale of the lot here in controversy be made, in order that the fund arising from such sale might be reinvested in a tract of land to be held by the widow for life, and then to each of the other petitioners as tenants in common according to their rights in the lot sold. This was accompanied by an affidavit of two persons that it was for the interest of all the parties that the sale should be made, and the fund invested, as proposed. No orders or decrees seem to have been made while the cause was pending in the court of equity, but it was transferred to the superior court in 1868, and was continued from term to term till fall term, 1872, when a judgment was entered against the petitioners for costs, amounting to $16.10, and execution was issued, and a sale was made to defendant Emily Johnson, as heretofore stated. She was in possession of the premises at the time of the sale, and had been in possession since November, 1863, when she had purchased the lot, at the price of $2,500, from one Overby, who had bought it from W. H. High on the 3d day of November, 1863. High had purchased it on the 2d day of August, 1863, from one Harris Flowers, and the latter held it under the following contract: "Whereas, the undersigned have this day sold to Harris Flowers and his heirs a lot of ground near the city of Raleigh *** for the sum of fourteen hundred dollars; and whereas, some of the parties interested are under age: Now, know ye, that the undersigned, Polly Williams, David Williams, and S. N. Williams, bind themselves, their heirs, executors, and administrators, to make to the said Harris Flowers and his heirs a good and indefeasible title to the same, or cause to be made such title, by procuring a decree of the court of equity securing said title, or by procuring the execution of a proper deed from the parties interested, whether of age now, or of nonage; and in default thereof we bind ourselves, our heirs, executors, and administrators, the full and just sum of fourteen hundred dollars, and all interest from this date, and all such costs as he may be put to by reason of a failure to have said title made as above obligated. In witness whereof," etc. This contract was executed in July, 1863, and was registered soon after its execution, and the recitals in her deed were such as to give notice to her that those under whom she held claimed under this contract. It was also proved that for two years prior to her purchase of the lot, in 1863, the defendant Emily Johnson had occupied it as tenant of the widow, Polly Williams, to whom she was connected by marriage, her brother having married a sister of Polly Williams.

Such being the relation of the parties to one another, and to the matter in controversy, the plaintiffs insist that they shall be permitted to prove that the petition in the court of equity of Wake county for the sale of the lot, and the reinvestment of the fund, was filed by Sion H. Rogers at the instance and request of the widow, and that neither he nor she had any authority from the plaintiffs to file that petition, and that they had never ratified their action; that they were indeed ignorant of the fact that such a petition had been filed, or that any judgment for costs had been entered against them, or that any sale had been made thereunder, till shortly before the bringing of this action and that this petition was filed by the widow without the knowledge or consent of the heirs, and this judgment for costs that had not been earned was entered, and this sale under execution was made, to cheat and defraud the heirs of S.W. Williams of their reversion in this lot. The charge of fraud brought at this late day by the plaintiffs against their mother is founded upon the idea, not that she did directly any act to deprive them of their title, but that, without any authority from them, she employed a most respectable solicitor, able and faithful, to ask a court of equity to sell the lot, and itself invest the proceeds in other real estate. We deem it unnecessary to discuss the evidence that tends to prove or disprove this charge of fraud, for we find no testimony that, in our opinion, in any way goes to show that the defendant Emily Johnson knew that the solicitor who filed the petition was acting without authority from the clients he professed to represent, or that the widow was contriving to cheat and defraud her own children. The facts that she was distantly connected with the widow by marriage, and that she and her husband had occupied the lot from 1861 to 1863 as her tenants, go for nothing. The recitals in her deed pointing, as plaintiffs contend, to the contract made by the widow, and set out above in full, seem to us rather an assurance that the proceeding...