Doe Ex Dem. Taylor v. Gooch

Clark, J.: The purchase-money having been paid in full by William Pannill, the heirs at law of the vendor were naked trustees of the legal title for his benefit. In a Court of competent jurisdiction, in a proceeding to which the heirs at law of the vendor and the vendee were parties, it was adjudged, in 1803, that the former execute title to the said vendee. With that decree in force and unimpeached, it is clear that the heirs at law cannot take advantage of their own wrong in not having executed the decree to recover from the beneficial owner the land, for which it is adjudged that he had already paid in full, and which their ancestor had covenanted to convey to him whenever such payment had been made. By virtue' of ch. 478, Acts 1797 — Rev. Code, ch. 46, § 37 (and substantially re-enácted in The Code,. § 1492), the administrator de bonis non of the vendor subsequently in 1855 registered the bond to make title in the proper county, and conveyed the legal title to Pannill’s heirs at law, who, in turn, in 1857 conveyed to Gooch, then the defendant in this action. This, by virtue of the statute, passed, as against the plaintiff, the naked legal title, which alone she could claim as an heir at law of the vendor. This was set up as a plea since last continuance and was properly allowed by the Court since it could not have been pleaded when the answer was filed, and the defendant was entitled to the benefit of it. In Johnson v. Swain, 44 N. C., 335, such plea was allowed where plaintiff acquired possession after suit brought, and of course is allowable here, where the title passed out of the *391 plaintiff by virtue of the statute. It is immaterial to consider whether it was strictly an amendment to the answer, or a plea since last continuance.' A plaintiff cannot recover on a title accrued since action begun. If he sues too soon, he can take a nonsuit and begin over again. Not so with the defendant. If the Court cannot permit him to set up a defect in plaintiff’s title,.or a matter validating his own, which accrues since action brought, the defendant -would be without remedy since the judgment obtained against him for want of such plea would be an estoppel. The statute then in force gave the Court the fullest power to permit this amendment to the answer. It provides that the Court may “amend any process, pleading or proceeding, either in form or substance.” R. C., ch. 3, § 1. It is immaterial to consider what interest passed to Washington under the execution sale against Pannill in 1806, subsequent to the decree of 1803, but prior to the act of 1812, authorizing the sale of trust estates — which point was somewhat considered when this case was here the second time (in 1857) 49 N. C., 436 — because after that time the above conveyances placed the legal title and the right of Pannill’s heirs also in Gooch, who held already whatever rights, if any, had passed under the execution sale. The judgment taken against Gooch in 1878, after his death, was irregular and voidable, and was properly set aside by a„motion in the cause. It is objected that the motion could not be made by the mover, who was not a party to the original action, but who had acquired his interest in the-subject matter of the suit under Gooch since action begun. But it has been held in a proceeding between these same parties, Knott v. Taylor, 99 N. C., 511, that he can make such motion. It would be very strange if he could not, since it is held in that case that he could not set up his rights and enjoin the execution of plaintiff’s writ of possession in an independent action. *392 An irregular judgment can be set aside upon motion' within any reasonable time. Harrell v. Peebles, 79 N. C., 26; Austin v. Rodman, 8 N. C., 71; Wade v. Odeneal, 14 N. C., 423 Keaton v. Banks, 32 N. C., 381; Bender v. Askew, 14 N. C , 149; Blue v. Blue, 79 N. C., 69. The judgment was taken against Gooch in September, 1878, after his death. A writ of,possession was sued out thereon in 1882, and immediately the present mover in this cause instituted proceedings to restrain the plaintiff. At Spring Term, 1888, of this Court, it was decided that the mover had mistaken his remedy, which should be by a motion in the cause. Knott v. Taylor, supra. At the first term thereafter of the Court below, in September, 1888, this motion in the cause to set aside the judgment was made. It was in apt time. There has been no acquiescence or sleeping on his rights by the party aggrieved. It is not shown that he had any knowledge of the judgment till plaintiff sued out his writ of possession in 1882, and it is not probable that he had. This is the fifth time this matter, which has been in litigation more than forty years, has been in this Court. The defendants, and those under whom they claim, have been in continuous and unbroken possession -of the premi.-es for ninety years. Eighty-nine years ago a decree was made in a cause pending between the parties under whom the plaintiff and defendants, respectively, claim, adjudging that those whose title and possession the defendants hold had paid in full for the premises, and adjudging that the plaintiff’s ancestor execute title to the same. This action, having begun long before the adoption of the present reformed .procedure, our old friends John Doe and Richard Roe figure as parties to the action. It is probably their last appearance upon the legal stage in this State. Originally introduced as a means of evading the excessive *393 technicalities of the old real action, the disappearance of the fiction marks a still more notable advance in the progress and simplification of the methods of legal procedure. Affirmed.