Condry v. . Cheshire

Ashe, J. The first ground of appeal taken by the defendants is without foundation. It has been decided by this court and is *378 now to be considered a settled law o'f the state, that a plaintiff in ah action to recover real property may recover upon an equitable title, even as in this case where the legal estate is in his trustee. Murray v. Blackledge, 71 N. C., 492; Farmer v. Daniel, 82 N. C., 152. And if the ground of appeal was intended to embrace the ruling of His Honor upon the legal effect of the decree in equity on the right of the plaintiffs to recover in this action, that question has been settled with no less certainty, in Doyle v. Brown, 72 N. C., 393, where it is held that “when a defendant has never been served with process, nor appeared in person or by attorney, a judgment against him is not simply voidable, but void, and tnay be so treated whenever and wherever offered, without any direct proceeding to vacate it.” To the same effect is Stallings v. Gully, 3 Jones, 344. Here, there was no service or pretence of .service upon the plaintiffs, either by ¡personal service or by publication; nor any appearance by them in person or by attorney; nor any knowledge of the proceeding in equity until long after the decree of sale, and no ratification of the same. As to the second ground: There was no error in the refusal of the judge to admit the evidence offered by the defendants with regard to permanent improvements. The doctrine of betterments prior to the act of 1871-72 (Bat. Rev., ch. 17, § 262 a), was recognized and admitted in this state only in cases of a purely equitable character: as where a contract for the sale of land had been rescinded, or the title had failed by reason of the contract not being in writing, &c. Albea v. Griffin, 2 Dev. & Bat. Eq., 9; Hill v. Brower, 76 N. C., 124. The doctrine has never been applied to actions of ejectment. To make it applicable to that action or to actions under the Code in the nature of ejectment, legislation was necessary. Hence the act of 1871—72, which extended the doctrine to actions to recover land in nature of ejectment, prescribing the mode of proceeding, by petition, after judgment and before execution. And in Merritt v. Scott, 81 N. C., 385, it was held that to enjoy *379 the benefit of the act, the defendant after judgment must file his petition and ask to be allowed for his permanent improvements over and above the value of the use and occupation of the land. This remedy is still open to the defendants. The remaining ground of appeal is not less untenable than those we have considered. We concur in the opinion expressed by His Honor that Cheshire and Piolines had no right to be substituted to the rights of the plaintiffs against their co-defendant executors, and for the reason assigned by him that they were mere volunteers and had paid nothing for the land, and that if any one had the right to such substitution, it was the representative of Nathaniel Holmes, but he was not a party to the action. There is no error. The case is remanded that the defendants may have an opportunity to file a petition under the act of 1871 — 72, if they shall be advised to do so. No error. Affirmed.