Ange v. . Owens

Sea well, J. As the case hinges on the question whether these judgments are absolutely void or merely irregular, it will not be necessary to consider other contested features. The law has undergone various changes with respect to the days on which the clerk might render judgment under the jurisdiction given him by the Civil Procedure Act of 1921 (Extra Session) and amendments. At the time the judgments challenged by the plaintiffs as void were rendered — respectively, Friday, 24 March, 1933 (ordering sale), and Tuesday, 16 May, 1933 (confirming sale and ordering deed made)— *516 section 597 (b) of Michie’s Code, chapter 92, s. 10, Extra Session of 1921, chapter 68, Public Laws of 1923, fixed the time for entry of such judgments. It reads in part as follows: “No judgment shall be entered by the clerk, except as herein otherwise provided, except on every Monday of each month.” No other provision of the law at that particular time authorized the rendition of a judgment of this sort on any other day. As to whether a judgment of this sort, rendered by the clerk of the court on any other day except the Mondays designated by the statute, is void or irregular is no longer an open question here. In Beaufort County v. Bishop, 216 N. C., 211, 4 S. E. (2d), 525, Mr. Justice Win-borne, speaking for the unanimous Court, said : “In the present case the clerk, by entering two decrees, one on 10 February, 1939, and the other on 21 February, 1939, has undertaken to confirm the sale and to order title made and executed. The first of these orders was on Friday, and the second on Tuesday. Therefore, the clerk having undertaken to act at a time when he had no jurisdiction to act, the purported orders of confirmation are void and give no force or validity to the deed of the commissioner purporting to be executed thereunder. McCauley v. McCauley, 122 N. C., 288, 30 S. E., 344.” That Gf. S., 1-215.1, chapter 301, sec. 4, Public Laws of 1943, was directly intended to cover a situation of this kind, and to validate judgments thus rendered, there can be no question. However, it is well understood that the Legislature has no power to validate a void judgment, or indeed to give validity of any sort to a proceeding absolutely void, since “ex nihilo nihil fit is one maxim which admits of no exceptions.” Chemical Co. v. Turner, 190 N. C., 471, 130 S. E., 154. We have considered the question of the bar of the statute of limitations, and are of opinion that in this ease, since the defendants hold under a void deed as color of title and must, for the purposes of this motion, be regarded as tenants in common with the plaintiffs, their status as to any title by adverse possession under color they may now assert must be determined by Gr. S., 1-39, rather than Gf. S., 1-38. The requisite twenty years has not expired. Whether any statute of limitations is available to defendants during the pendency of the foreclosure proceeding, it is unnecessary for us to decide. The judgment from which appeal is taken was correct and is Affirmed.