Yarborough v. . Moore

*119 Walker, J., after stating the ease: It is well settled that the Superior Court had jurisdiction of the proceeding to sell the land for the purpose of paying the debts of the testatrix. Laws 1876-’77, ch. 241; Revisal, sec. 129; Haywood v. Haywood, 79 N. C., 42; Clement v. Cozart, 107 N. C., 695; Fisher v. Trust Co., 138 N. C., 90. A single creditor may proceed by action in that court to subject the land of his deceased debtor to the payment of his claim. Pegram v. Arrington, 82 N. C., 326; Shober v. Wheeler, 144 N. C., 409. Especially may he sue to compel the personal representative to perform his fiduciary duty and sell the land for the payment of debts. Pelletier v. Saunders, 67 N. C., 261. The statute makes it the duty of the personal representative to sell the land when the personal property is insufficient to pay the debts, and there is no good reason why the creditor should not be permitted to compel a performance of this duty by suit when the representative refuses to take any action in the premises. We hold, therefore, against the contention of those who now move to set aside its judgment, that the court had jurisdiction of the cause. We are concluded by the findings of the judge as to the facts, when there is any evidence to support them; and, without discussing the question more fully with special reference to the testimony, we will consider the case upon the facts as found by him. Clark’s Code, sec. 417, and cases cited in the notes. There is evidence in the record which tends to establish the facts as found. We will first refer t.o the legal merits of the motion, so far as the children of J. W. Moore are concerned; and for the purpose of disposing of this branch of the case we will assume that' he acquired only a life estate by the will of his mother, Martha Moore. He was a party to the action, and was, of course, bound by the judgment. The question presented is: Are his children also bound under the doctrine of representation? They were not in esse when the judgment was rendered, and were not born for some years afterwards. The law is careful to preserve and safeguard the integrity of judicial sales. Public policy requires that such should be the case, in order to inspire confidence in the regularity and validity of judicial proceedings in which such sales are ordered, and to induce persons to become purchasers. The language of Ruffin, J., in Sutton v. Schonwald, 86 N. C., 198, expresses clearly the rule of the law in this respect: “In such cases the law proceeds upon the ground as well of public policy as upon principles of equity. Purchasers should be able to rely upon the judgments and decrees of the courts of the country; and, although they may know of their liability to be reversed, yet they have a right, so long as they stand, to presume *120 that they have been rightly and regularly rendered, and they are not expected to take notice of the errors of the court or the laches of parties. The contrary doctrine would be fatal to judicial sales and values of titles derived under them, as no one would buy at prices at all approximating the true value of property if he supposed that at some distant day his title might be declared void because of some irregularity in the proceeding, altogether unsuspected by him and of which he had no opportunity to inform himself.” We said, in Millsaps v. Estes, 137 N. C., 544: “It is freely admitted to be the general rule, as argued by the defendants’ counsel, that innocent purchasers, or those who have purchased at a judicial sale, without notice of any irregularity in the proceedings and judgment under which the sale was made, will be protected when it appears that the court had jurisdiction of the parties and of the subject-matter of the proceedings, and that the judgment on its face authorized the sale. This is but another way of stating the general principle that the judgment or decree of a court having general jurisdiction over the subject-matter, subsisting unreversed, must be respected, and sustains all things done under it, notwithstanding any irregularity in the course of the proceedings or error in the decision. Williams v. Harrington, supra. Such a judgment will therefore sustain the title of a purchaser at a sale made undejr it, if he had no notice of the alleged defect in the proceedings. Su tton v. Schonwald, 86 N. C., 198; England v. Garner, 90 N. C., 197,” What we have quoted is applicable generally to this case. As to the interest of the children of J. W. Moore, we have held in a similar case that they were sufficiently represented by him, although he was but a life tenant of the property. Carraway v. Lassiter, 139 N. C., 145. In that case (at pages 151-152) the Court said: “It appears that since the filing of this petition Mrs. Carraway has died. The petitioners are not parties to the original proceeding; they claim title to the land as remainder-man after the termination of* the life estate of Mrs. Carraway, under the will of Mrs. Whitehead. ... If the proceeding had been one in which the life tenant had, for any proper reason, invoked the aid of the court to sell the land as for partition, only those who were parties, either personally or by representation, would be bound by the decree. The proceeding is based upon the theory that the executor is, by order of the court, selling the lands of his testatrix, which are subject to the payment of her debts, and the devisees or heirs at law are brought in that they may show cause why he may not have license to do so. If the petitioners had been in esse at the time the proceeding was insti *121 tuted, it would have been necessary, to divest tbeir interest, to make them parties. It cannot be that a person indebted may, by devising his lands, upon contingent limitation to parties not in esse, prevent their sale for payment of his debts until all who may by possibility take are born,' or every possible contingency is at an end. Mrs. Carraway, for the purpose of enabling the court to proceed in the cause, represented the entire title, and children thereafter born to her are bound by the judgment.” This citation is sufficient to sustain the ruling of the Court that the children of J. "W. Moore are not entitled to vacate the sale. Let us now consider the case so far as it relates to the interest of the children of Sarah Harris. An examination of the record nowhere shows that any of her children were under the age of fourteen years, which would require the service of the summons by copy and compliance with the other provisions of the statute. It is true that a guardian ad litem was appointed for them, and also for other infants, but this would only imply that they were minors and not indicate at all their respective ages. The fact that the sheriff served the summons by reading it to those infants would indicate,' if anything, that they were over the age of fourteen years. So that, looking at the record, there was nothing to put any person, who intended to buy, upon his guard. Service of the summons by reading it to a minor is good, unless he is under the age of fourteen years, and, as to a purchaser, it so appears on the face of the record or he has actual knowledge of the fact. A purchaser at a judicial sale is only required to see that the court has jurisdiction of the parties and the cause of action. Williams v. Johnson, 112 N. C., 424. In Syme v. Trice, 96 N. C., 243, one of the parties was an infant, but the record did not disclose the fact. The court failed to appoint a guardian ad litem for him. His motion, after he arrived at full age, was denied, upon the ground that the proceeding was merely irregular and he could not have relief as against an innocent purchaser of the land which was sold under an order of the court. The proceedings were apparently regular and the purchaser was protected. So, in Matthews v. Joyce, 85 N. C., 264, viewing the question from a different standpoint, the Court said: “To declare a legal proceeding void for the want of such service upon a few of the class of whom the larger number, with identical interests in the result, have been regularly brought into court, would be to establish a rule subversive of much judicial action, unsettling titles dependent thereon and introducing distrust and confusion in regard to the tenure of estates, the injurious consequences of which can hardly be foreseen or estimated; and we do not feel at liberty, after so long a delay, to disturb the decree *122 on tbis ground.” It was also held in Harrison v. Hargrove, 120 N. C., 96, that where tbe record shows service of process apparently sufficient, the rights of an innocent purchaser will not be disturbed. So, in England v. Garner, 90 N. C., 197, one of the parties to the proceeding, which was ex parte, was an infant, who had no knowledge of it, though there was nothing in the record to suggest his infancy. With reference to these facts, the. Court said: “If he were an infant, this did not render the judgment as to him absolutely void; it was irregular and might, upon proper application, have been set aside — not, however, to the prejudice of bona fide purchasers without notice.” It must be remembered that the court finds, in this case, that the parties who now seek to set aside the judgment had no defense to the proceeding and were not in the least prejudiced by what was done in it. The infants were all represented by guardians ad litem, who, in good faith, so far as appears, rep- • resented them and their interests, and filed answers. The debt was justly due, as had been established in a prior action by judgment, and the land should have been sold to pay it. The sale by the commissioner was reported to the court, and, upon due consideration, it was confirmed. The land presumably brought a fair price. If it had not, the court would hardly have confirmed the sale. Facts such as these have much weight with the court in passing upon questions of this kind. Williamson v. Hartman, 92 N. C., 236. Furthermore, it appears that the parties have waited for many years, after reaching their majority, before moving in this case to vacate the judgment; and,' in view of the facts as found by the court, and this long delay, we do not see that they have made any showing which entitles them to the favorable consideration of the Court, under the principles of the law applicable to this class of cases. Williamson v. Hartman, 92 N. C., 236; Williams v. Williams, 94 N. C., 732; Edwards v. Moore, 99 N. C., 1; Weaver v. Jones, 82 N. C., 440; Harrison v. Hargrove, 109 N. C., 346; Matthews v. Joyce, supra; White v. Morris, 107 N. C., 92. The motion t.o set aside the judgment cannot be considered, by us as a meritorious one, in any aspect of the case. The respondents have purchased the land in good faith and for a valuable consideration and without notice of any fatal irregularity apparent upon the face of the record. Indeed, an examination of the record would seem to indicate that the proceeding was conducted with due regard to the prescribed forms of law, and there is nothing in it to notify a prudent and careful man that any of the parties had not been duly summoned to appear in the cause o.r that his or her interest had not been "properly repre- *123 seated. There was no finding by tbe court that tbe purchasers bad actual notice of any irregularity which would invalidate the judgment. Affirmed.