Bynum v. . Bynum

Hoke, J., after stating the case: Tbe power of a court having jurisdiction, by proceedings, quasi in rem, and observing the statutory methods as to service of process, to make valid decrees affecting the status, condition, and ownership of real property, situate within the State, is fully recognized with us, and, in proper instances, the same may be made effective both against nonresidents and persons unknown. Lawrence v. Hardy, 151 N. C., 123; Vick v. Flourney, 147 N. C., 209; Bernhardt v. Brown, 118 N. C., 701. In Vick v. Flournoy the general principle is stated as follows: “Tbe courts of this State have jurisdiction of the persons of nonresident defendants to the extent required in proceedings in rem or quasi in rem, when personal service is made by complying with the requirements of Rev., 448, and the property is situated here.” And, in Lawrence v. Hardy, as applied to a sale under partition proceedings, it was held that: “Our courts have general power, in following provisions of Rev., 2490, relating to the service of process by publication, to acquire jurisdiction and make decrees affecting the condition and ownership of real property situate within the State, i. e., in proceedings quasi in rem; and this section is not subversive of the ‘due process’ clause of the Constitution.” And, under our liberal procedure applicable, the essential and proper *17 parties to a valid disposition of the cause may be brought in pending the litigation, or even after judgment, and where the interest of such parties is presented by amendment or sufficiently appears from the pleadings already filed, the proceedings will bind to the extent of the jurisdictional authority of the court having the matter before it. Rev., 501, 449, 414, etc. In our general statutes ample provision is made for service of process on nonresidents. Rev., 442-448, et seq., and under ch. 59 of Revisal, for partition and sale of real property. In section 2490 it is expressly enacted that persons unknown may be made parties by publication when they are interested in the property and their names are unknown, and cannot, after due diligence, be ascertained, etc. From a perusal of petition and facts in evidence, it appears that, under this statute, proper publication has been made for nonresidents and parties unknown; their interest is fully disclosed in the pleadings, and, under the principles heretofore stated,- there is no reason why the deed of the commissioner, who has sold the property under a decree in the cause, is not in a position to convey a good title. From an examination of the statute under which the proceedings was had, Eev., ch. 59, it would seem that, while the court is authorized to direct sale and conveyance of the title to the purchaser, it is without power to enter a decree destroying or invalidating the claim or interest of Benjamin Bynum or his unknown heirs. Section 2516 of the act expressly provides that the court shall, by its decree, provide that the share of any party to the proceedings, when an infant, married woman, etc., nonresident, or whose names are unknown, shall be invested or secured for such party or his real representative, etc. This, as stated, in no wise interferes with power to free the title and make a valid conveyance of the same. The court having jurisdiction of the parties and the subject-matter, to that extent and for that purpose, the proper care and distribution of the proceeds is not of concern to the purchaser. Dawson v. Wood, 117 N. C., 158; Pendleton v. Williams, 175 N. C., 248. In the final decree, however, the court, acting under the statute, shall make such provision for the disposition of this interest as the right and justice of the case may require. Speaking to this matter, in Lawrence v. Hardy, supra, a case that is to a great extent decisive of the questions presented in this appeal, the Court said: “A court dealing with the matter should always be properly careful of the rights and interests of the parties who are only so by reason of constructive service. If such rights are questioned or assailed, the statute provides that some disinterested person may be appointed to represent them and look after their interests, and this should, in most instances, be done. If these interests are known to exist, or there is good reason to believe that they do, a sufficient amount of the fund should be retained to satisfy such claims *18 and be invested or settled so tbat it may be forthcoming when called for. This the statute expressly requires (Rev., 2516), and if there is promise of success, further effort can and should be made to ascertain and notify the rightful owners; but the policy of the law is, and has always been, that our land shall pass into the possession of home owners, and with assured and unencumbered title, and this wise and beneficial purpose should not be prevented nor seriously hindered because in rare and exceptional instances a wrong may be possible.” There is no error in the record, and the judgment directing payment of the purchase money is Affirmed.