Holden v. Totten, 225 N.C. 558 (1945)

Oct. 31, 1945 · Supreme Court of North Carolina

225 N.C. 558

PERCY B. HOLDEN v. W. L. TOTTEN et al.

(Filed 31 October, 1945.)

1. Judgments §§ 32b, 22g: Execution § 11—

In an action to remove a cloud upon plaintiff’s title, based on a transcript of judgment from Durham County docketed in Greene County, where restraining order was continued and appeal taken and thereafter on call of the case for trial, it appeared that motion had been lodged in Durham County to correct the record and that plaintiff had set up his rights in the Durham County proceeding, the defendant was entitled to have plaintiff pursue his legal remedies in Durham before asking for further aid from the equity case in Greene. The apparent irregularity may be corrected by motion in the cause in Durham County, or the execution may be recalled; and for the present the remedies in Durham County seem adequate.

2. Execution § 16: Judgments § 22b—

A sale under execution may be restrained if the deed of the officer who sells will not pass title and will only throw a cloud upon the title of plaintiff; but the invalidity of the judgment upon which the execution was issued may not be collaterally attacked unless it be void or unenforceable.

Appeal by defendant, W. L. Totten, from Frizzelle, J., at Eebruary-Marcb Term, 1945, of GbeeNE.

Civil action to remove cloud upon title created by transcript of judgment from Durham County, docketed in Greene County, and to restrain sale under execution on the judgment.

A temporary restraining order was issued in the cause and continued to the hearing. An appeal was immediately taken and is reported in 224 N. 0., 54-7.

Thereafter, upon call of the case for trial, it was made to appear that motion was then pending in the cause in Durham County to correct the record, and that “the plaintiffs in this case have set up their rights before the court in this motion.” Whereupon, the defendants moved for a continuance until the motion could be heard in Durham Superior Court.

The case proceeded without the intervention of a jury, and from the facts found, the trial court concluded that the purported judgment in Durham County was void, and that plaintiff was entitled to have the transcript thereof in Greene County removed as cloud upon title.

Defendant appeals, assigning errors.

J. Faison Thomson and K. A. Pittman for plaintiff, appellee.

Bennett & McDonald for defendant, appellant.

Stacy, C. J.

This is tbe same matter tbat was before us at tbe Fall Term, 1944, reported in 224 N. C., 547, witb full statement of tbe facts, to wbicb reference may be bad to avoid repetition.

Tbe only question presented on tbe former appeal was tbe protection of tbe res until tbe facts could be fully developed. Tbe force and effect of tbe transcript in Greene County necessarily depends on tbe validity of tbe judgment in Durham County. When it was made to appear tbat motion bad been lodged in Durham County to correct tbe record in tbe case, and tbat tbe plaintiff herein bad set up bis rights before tbe court in tbe proceeding there, it would seem tbat defendant was entitled to have tbe plaintiff pursue bis legal remedies before asking further aid from a court of equity.

True it is, tbat under tbe law as it now exists, a sale under execution may be restrained if tbe deed of tbe officer who sells will not pass title, and will only throw a cloud upon tbe title of tbe plaintiff, Harris v. Distributing Co., 172 N. C., 14, 89 S. E., 789; Mizell v. Bazemore, 194 N. C., 324, 139 S. E., 453, but tbe invalidity of tbe judgment upon wbicb tbe execution was issued may not be collaterally attacked unless it be void or unenforceable, as, for example, where tbe lien of tbe judgment is barred by tbe lapse of time. Exum v. R. R., 222 N. C., 222, 22 S. E. (2d), 424.

Here, tbe apparent irregularity of tbe judgment may be corrected on motion in tbe cause in Durham County, Ragan v. Ragan, 212 N. C., 753, 194 S. E., 458; S. v. Brown, 203 N. C., 513, 166 S. E., 396, or tbe execution may there be recalled. Finance Co. v. Trust Co., 213 N. C., 369, 196 S. E., 340; Crowder v. Stiers, 215 N. C., 123, 1 S. E. (2d), 353. For tbe present, at least, tbe remedies available in Durham County seem adequate. So, we need not now decide to what extent tbe Superior Court of Greene County may look into tbe records of tbe Superior Court of Durham County to determine tbe validity of tbe judgment and tbe effectiveness of tbe transcript to another county. Monroe v. Niven, 221 N C., 362, 20 S. E. (2d), 311; Clark v. Homes, 189 N. C., 703, 128 S. E., 20; Hargrove v. Wilson, 148 N. C., 439, 62 S. E., 520; Dowdle v. Corpening, 32 N. C., 58; S. v. King, 27 N. C., 203.

Error.