Lanier v. . Heilig

0 ON NOR, J., after stating the facts: It is settled, by a long and uniform line of decisions of this Court, that a final judgment can be attacked for fraud in its procurement only by an independent action. Fowler v. Poor, 93 N. C., 466; Syme v. Trice, 96 N. C., 243; Brickhouse v. Sutton, 99 N. C., 103; Smith v. Fort, 105 N. C., 446, and many other cases. As no issue was tendered upon the allegation of fraud, and as we find no evidence tending to sustain the allegation, that phase of the ease is eliminated. It is equally well settled, that for irregularities in the progress of the cause a motion is the proper and only remedy; 'and this is true, notwithstanding there is a final decree. In Fowler v. Poor, supra, Merrimon, J., after holding that for alleged fraud a new action is the only remedy, says: “It would be otherwise, however, if the purpose were to set the judgment aside for irregularity. In such a case a motion in the cause, although the action be ended, is the proper remedy.” In Morris v. White, 96 N. C., 91, the same Justice said: “The Court properly held that *388 the plaintiff’s remedy was by motion, or other appropriate proceeding, in the action in which thé decree complained of was granted. They seek to have the decree set aside upon the .ground of irregularity in it and in the proceedings in the action leading to it. It was competent, and the appropriate remedy, to move in the action within a reasonable time after the decree was granted to set it aside for such cause, and this is so although the action was ended.” This is the settled practice in this State from which we find no deviation. His Honor, after plaintiff’s failure to tender an issrre upon the allegation of fraud, should have dismissed the action. The issues submitted.were properly answered and fail to show any such irregularity as would justify the Court in setting aside the judgment and the sale. If a motion in the cause had been made and the facts found by the jury herein, established, the Court would not have set aside the judgment and sale, made pursuant to it, as to the land purchased by defendant and left it standing as to the other tracts of land. The plaintiff Mattie Lanier purchased at the sale a part of the land, and a number of other persons purchased other parts. The purchase money has been paid and applied to the debts of James B. Lanier. If the sale was made pursuant to an irregular judgment, and is for that reason to be set aside, the Court would be compelled to administer the equities grow-, ing out of the transaction, subrogating the purchasers to the rights of the creditors. This would necessitate having all of them before the Court that fpll and complete justice should be done. To.set the sale aside as to defendant’s tract, and, restore it to the heirs, leaving the other purchasers in the enjoyment and ownership of the tracts purchased by them at the same time and under the same judgment, would be unjust. No Court having .equitable powers, or proceeding upon well, settled doctrines of equity, would do so. Wé have examined the entire record, and while there appears to have been some, irregularities, it is manifest that the Court had jurisdiction *389 of tbe parties and tbe subject matter;-that tbe parties were notified of tbe several steps in tbe proceeding, and some of them participated in tbe purchase of land under tbe judgment. There is no suggestion that tbe findings of fact by Judge Mel ver were not correct. Tbe parties, after notice, failed to attend tbe bearing or controvert tbe allegations of the petition on tbe part of Mr. Overman to intervene. Tbe sale was properly conducted and duly reported and confirmed. Courts are reluctant, in-the .absence of fraud, to set aside judgments and disturb rights acquired under them, for mere irregularities, especially when tbe parties complaining have delayed action for a long time. The sale was confirmed and deed made 29 September, 1898, and this action was brought 5 August, 1905. "While tbe judgment of his Honor must be affirmed, because tbe plaintiff’s remedy, for alleged irregularities, was a motion in tbe cause upon tbe entire record, no other judgment could have been rendered for other and manifest reasons.' There is no suggestion that defendant bad any knowledge of tbe alleged irregularities. An examination of tbe judgment would not have disclosed them. Even when a judgment is set aside for irregularities, tbe rights of innocent parties acquired under it, will not be disturbed. It is only when tbe judgment is void because tbe Court bad no jurisdiction of tbe persons or tbe subject matter that rights acquired will be disturbed. In such cases, if tbe purchase money has been applied in exoneration of tbe land, tbe purchaser will be subrogated to tbe fights of tbe creditors. This is common learning and manifest equity. There is No error.