McGlawhorn v. . Worthington

MekrimoN,J., (after stating the case). There is no assignment of error in the record as to the admission or effect of the report of the commissioners who made partition of the land of Spier Worthington, deceased, among his heirs at law, and this Court must confine its action to the correction of errors assigned. It is stated in the case settled *202 upon, appeal, that this report was put in evidence without objection. As to the first exception, we think the reference to and description of the land in the deed was sufficiently definite to render the deed effectual in this respect. A particular tract — all of a particular tract owned by the intestate, adjoining the lands of certain persons named, is designated upon the face of the deed — it points to the tract intended. And obviously the evidence produced was pertinent and competent, as tending to prove that the land was that embraced by the deed and the description specified in the complaint. Brown v. Coble, 76 N. C., 391; Wharton v. Eborn, 88 N. C., 344. "We are also of opinion that the objection to the special proceedings put in evidence cannot be sustained. There were irregularities and informalities in them, but not such as rendered it void. The Court had jurisdiction of the subject matter and of the parties; it certainly so appears upon the face of the record-. The summons was served upon all the defendants except one, who was of age and accepted service. It seems that one or more of them may have been infants; this, however, appears only by inference. It seems that a guardian ad litem, for whom does not appear, was informally appointed, and he “accepted service” of the summons. Such irregularities do not render the proceedings void. They may afford ground for a motion in the proceedings themselves to set the judgment aside, but not for attacking them collaterally. Besides, such irregularities seem to be cured by the statute (The Code, §387), Gay v. Stancil, 92 N. C., 455, 464; Fowler v. Poor, 93 N. C., 466; Hare v. Holloman, 94 N. C., 14; Ward v. Lowndes, 96 N. C., 376. If it be granted that in any possible view of the deed offered in evidence by the appellant, it could be upheld as sufficiently designating a particular tract of land, no evi *203 dence was produced to prove that any particular portion of the John Tripp land was known as “ a part of the John Tripp land.” There was an absence of proof to help the description in the deed. No error appears, and the judgment must be affirmed. No error. Affirmed.