Powell v. Turpin, 224 N.C. 67 (1944)

March 1, 1944 · Supreme Court of North Carolina

224 N.C. 67

MRS. ETHEL DAVIS POWELL, Widow; GWENDOLYN DAVIS BATES, SANFORD DAVIS, DARRELL DAVIS, GLENN DAVIS, KENNETH DAVIS, and CHARLES DAVIS, v. J. N. TURPIN and Wife, PEARL TURPIN.

(Filed 1 March, 1944.)

1. Judgments §§ 32b, 29—

Where a court of competent jurisdiction of the subject matter recites in its judgment or decree that service of process by summons, or in the nature of summons, has been had upon the defendant, who is subject to the jurisdiction of the court, and the judgment is regular on its face, nothing else appearing, such judgment or decree is conclusive until set aside by direct proceedings, or by motion in the cause.

2. Same—

The recital in a judgment is conclusive as against collateral attack, when and only when it is consistent with the whole record in the case, as when the record shows service when in fact no service has been had or when summons has been lost. But the recital will not prevail against positive evidence in the record showing affirmatively that there was no legal service, or where other fatal defect appears on the face of the record or is discernible from an inspection of the record.

3. Judgments § 22h—

Unless a defendant lias been brought into court in some way sanctioned by law, or has made a voluntary appearance in person or by attorney, the court has no jurisdiction of his person and a judgment rendered against him is void and may be treated as a nullity.

4. Judicial Sales § 7—

A purchaser at a judicial sale must ascertain that the court had jurisdiction of the subject mutter and the person, and that the decree authorized the sale. And when the record itself discloses a want of service of process, he takes with notice that the decree is void and purchases at his peril.

5. Judgments § 22b: Ejectment § 15—

Collateral attack upon a void judgment is particularly apposite in ejectment in which a party may show that any instrument, relied upon by his adversary as evidence of title, is void and ineffectual to convey title. '

6. Judgments §§ 221i, 29: Equity § 2—

No statute of limitations runs against a plaintiff’s right of action in ejectment by reason of a void judgment of foreclosure for nonpayment of taxes, and laches, if any appeared, is no defense.

Appeal by defendants from Clemeni, J., at October Term, 1943, of JacksoN. No error.

Civil action in ejectment.

S. T. (Tom) Davis died intestate in November, 1917, seized and possessed of tbe lands in controversy. He left surviving bis widow and six children, tbe plaintiffs herein. After bis death tbe real estate in controversy was listed by county officials in tbe name of tbe widow, Mrs. Ethel Davis. There having been default in tbe payment of tbe taxes for tbe years 1927, 1928, and 1929, the land was sold for taxes. It was purchased by and tax sales certificates were issued to Jackson County.

On 29 November, 1929, Jackson County instituted a tax foreclosure action, based on said tax sales certificates, against tbe widow. Tbe summons in tbe judgment roll bears tbe following endorsement by tbe sheriff: “Due search made and defendant not to be found in Jackson County.” A verified complaint was filed, an order of sale entered, and a commissioner to make sale was appointed. Tbe land was sold after advertisement and purchased by Jackson County. The sale was confirmed and deed was executed 14 March, 1933.

Tbe interlocutory order of foreclosure contains tbe following recitals:

“This cause coming on to be beard . . . and it appearing to tbe satisfaction of tbe court that summons herein was duly served as required by law . . . and that notice of action has been duly advertised as required by law; . .

After tbe foreclosure plaintiffs continued in tbe possession of tbe land, but tbe county bad some timber cut and removed therefrom, its agent stating at tbe time tbat “they were cutting it off for tbe taxes; tbat be was cutting tbis timber to pay up tbe taxes on tbe place for it and was going to straighten it up.”

On 5 March, 1943, Jackson County executed and delivered to tbe defendants a quit-claim deed for said premises. Tbe defendants entered into possession of tbe premises and began to make improvements thereon. Tbis action, instituted 5 June, 1943, followed.

On tbe trial below appropriate issues were submitted to tbe jury, and tbe Court gave peremptory instructions in favor of tbe plaintiffs. There was verdict for tbe plaintiffs. From judgment thereon defendants appealed.

W. R. Sherrill and Stillwell •& Stillwell for plaintiffs, appellees.

M. V. Higdon and R. L. Phillips for defendants, appellants.

BaRNHill, J.

Tbis appeal presents two questions for decision: (1) Is tbe decree or judgment of foreclosure void? And (2) if so, is it subject to attack in tbis action? If tbe answers are in tbe affirmative, then tbe deed from tbe commissioner appointed to make sale conveys nothing, and tbe judgment below must stand.

Where a court of competent jurisdiction of tbe subject matter recites in its judgment or decree tbat service of process by summons or in tbe nature of summons has been bad upon tbe defendant who is subject to tbe jurisdiction of tbe court, and tbe judgment is regular on its face, nothing else appearing, such judgment or decree is conclusive until set aside by direct proceedings, Harrison v. Hargrove, 120 N. C., 96, 26 S. E., 936, or motion in the cause, McDonald v. Hoffman, 153 N. C., 254, 69 S. E., 49; Pinnell v. Burroughs, 168 N. C., 315, 84 S. E., 364; Downing v. White, 211 N. C., 40, 188 S. E., 815, as the particular facts may require. Johnson v. Whilden, 171 N. C., 153, 88 S. E., 223, and cases cited; McDonald v. Hoffman, supra; Hargrove v. Wilson, 148 N. C., 439, 62 S. E., 520; Reynolds v. Cotton Mills, 177 N. C., 412, 99 S. E., 240; Harrison v. Hargrove, supra, and authorities cited; Isley v. Boon, 113 N. C., 249, 18 S. E., 174; Anno. 68 A. L. R., 390; 31 Am. Jur., 199.

Tbis rule upon which defendants rely was devised primarily to preserve tbe integrity of judgments and to safeguard tbe rights of purchasers in cases where tbe record is otherwise silent or fails to speak tbe truth.

Tbe recital is conclusive as against collateral attack when and only when it is consistent with tbe record in tbe case, as when tbe record shows service when in fact no service has been bad, Dunn v. Wilson, 210 N. C., 493. 187 S. E., 802; Monroe v. Niven, 221 N. C., 362, 20 S. E. (2d), 311; Downing v. White, supra; Stocks v. Stocks, 179 N. C., 285, 102 S. E., 306; Estes v. Rash, 170 N. C., 341, 87 S. E., 109; Thompson v. Notion Co., 160 N. C., 520, 76 S. E., 470; Harrison v. Hargrove, supra, or tbe summons has been lost, Pinnell v. Burroughs, supra; McDonald v. Hoffman, supra.

“A contrary doctrine would be fatal to judicial sales and tbe values of tbe title derived under them, as no one would buy at prices at or approximating tbe true value of property if be supposed that bis title might at some distant date be declared void because of some irregularity in the proceeding altogether unsuspected by him and of which he had no opportunity to inform himself.” Sutton v. Schonwald, 86 N. C., 198 ; Pinnell v. Burroughs, supra; England v. Garner, 90 N. C., 197.

But the recital will not prevail against positive evidence contained in the record showing affirmatively that there was no legal service of process. "When the fact of nonservice or other fatal defect appears on the face of the record, or is discernible from an inspection of the record, it is not conclusive. Rutherford v. Ray, 147 N. C., 253, 61 S. E., 57, and cases cited; Card v. Finch, 142 N. C., 140, 54 S. E., 1009; Johnson v. Whilden, 171 N. C., 153, 88 S. E., 225, and cases cited; Clark v. Homes, 189 N. C., 703, 128 S. E., 20; Pinnell v. Burroughs, supra; Dunn v. Wilson, supra; Groce v. Groce, 214 N. C., 398, 199 S. E., 388; Denton v. Vassiliades, 212 N. C., 513, 193 S. E., 737.

That’is,, when the record itself contradicts the recital of due service contained in the judgment the principle of law which gives rise to a presumption of service does not apply. Instead, the jurisdictional finding is controlled by and must yield to the return of service as it appears in the record. 31 Am. Jur., 202, 203; Anno. 68 A. L. R., 395.

“The reason is that the want of service of process and the want of appearance is shown by the record itself whenever it is offered.” Card v. Finch, supra.

“It is axiomatic, at least in American jurisprudence, that a judgment rendered by a court against a citizen affecting his vested rights in an action or proceeding to which he is not a party is absolutely void and may be treated as a nullity whenever it is brought to the attention of the court.” Card v. Finch, supra; Johnson v. Whilden, supra; Flowers v. King, 145 N. C., 234, 58 S. E., 1074; Rackley v. Roberts, 147 N. C., 201, 60 S. E., 975; Doyle v. Brown, 72 N. C., 393; Carraway v. Lassiter, 139 N. C., 145, 51 S. E., 968; Smathers v. Sprouse, 144 N. C., 637, 57 S. E., 392; Pinnell v. Burroughs, supra.

It is likewise elementary that unless one named - as a defendant has been brought into court in some way sanctioned by law, or makes a voluntary appearance in person or by attorney, the court has no jurisdiction of the person and judgment rendered against him is void. Downing v. White, 211 N. C., 40, 188 S. E., 815, and cases cited; Casey v. Barker, 219 N. C., 465, 14 S. E. (2d), 429; Groce v. Groce, supra; Monroe v. Niven, supra.

A purchaser at a judicial sale must ascertain that the court had jurisdiction of the subject matter and the person, and that the decree authorized the sale. And when the record itself discloses that the defendant has not been brought into court by the service of process or by appearance in person or by attorney, he takes with notice that the decree of foreclosure is void and he purchases at his peril. Dickens v. Long, 112 N. C., 311, 17 S. E., 150; Card v. Finch, supra; Morris v. Gentry, 89 N. C., 248; Graham v. Floyd, 214 N. C., 77, 197 S. E., 873, and eases cited.

In determining whether a court had jurisdiction the whole record must be inspected, and if the judgment itself recites service but the return found shows no service or a service which is insufficient or unauthorized by law, the judgment must be regarded as void. Johnson v. Whilden, supra; Monroe v. Niven, supra; Casey v. Barker, supra; Groce v. Groce, supra; Laney v. Garbee, 105 Mo., 225.

Recital in a judgment of the service of process is deemed to refer to the kind of service shown in other parts of the record. Card v. Finch, supra; 31 Am. Jur., 202. It must be read in connection with that part of the record which sets forth the proof of service. The record being complete, the recital can only be considered as referring to the former. Card v. Finch, supra. It is presumed in such case that the service found in the record is the same and the only service referred to in the general recital in the judgment, and that the court acted upon the service appearing in the record. 31 Am. Jur., 202.

The rule which permits collateral attack upon a void judgment whenever it is called to the attention of the court in any proceeding in which it is material to the issue presented is particularly apposite in an ejectment suit in which a party may show that any instrument relied on by his adversary as evidence of title is void and ineffectual to convey title. Mobley v. Griffin, 104 N. C., 112, 10 S. E., 140; Ricks v. Brooks, 179 N. C., 204, 102 S. E., 207; Toler v. French, 213 N. C., 360, 196 S. E., 312; Keen v. Parker, 217 N. C., 378, 8 S. E. (2d), 209; Ownbey v. Parkway Properties, Inc., 221 N. C., 27, 18 S. E. (2d), 710; Higgins v. Higgins, 212 N. C., 219, 193 S. E., 159.

No statute of limitations runs against the plaintiffs’ action by reason of the judgment of foreclosure, and laches, if any appeared, is no defense. Harrison v. Hargrove, 109 N. C., 346, 13 S. E., 939; Card v. Finch, supra; Monroe v. Niven, supra.

Tbe judgment of foreclosure being void for tbe want of service of summons, tbe deed executed by tbe commissioner appointed to make sale conveyed nothing. Hence, tbe charge of tbe court below was in accord with tbe decisions of this Court, and tbe verdict and judgment must be sustained.

No error.