Lane v. . Becton

Seawell, J. The critical inquiry upon this appeal is whether that part of the judgment rendered in the action of Sauls, et al., v. Caesar Fort at April Term, 1900, of Wayne Superior Court, which orders a reconveyance to be made by Rachel Fort to Caesar Fort is within the jurisdiction of the court and valid. Otherwise, title to the property remained in Rachel Fort and was effectually conveyed to the appellants by Rachel’s subsequent deed. Preliminarily, we may say that a judgment is not necessarily to be considered integrally on such an inquiry. It may be good in one part and void in others' — “good for the part authorized by law, and bad for the residue”; 31 Am. Jur., p. 68, sec. 405; and the invalid divisible part may be treated as a nullity. Id. It is not questioned that' the court had the power, by a default judgment, to declare the deed made by Caesar Fort to Rachel Fort fraudulent and void as to the suing creditors, but it seems equally clear that it acted *461 in excess of its jurisdiction wben it ordered Racbel Fort to reconvey the lands to her husband and attempted to make the judgment effective as a transfer of title. There was nothing in the cause of action stated by the plaintiffs which rendered such action either necessary, or upon which it could be properly based. C. S., 606; Land Bank v. Davis, 215 N. C., 100, 1 S. E. (2d), 350. There was no controversy between Caesar Fort and his wife, and no consent to give the judgment validity. Neither of the parties defendant appealed; but they were under no necessity of appealing from a void judgment. Public policy, as expressed through the law, has not penalized such a transaction by declaring the deed utterly void as against all persons and for all purposes, but has expressly limited the remedy to the aggrieved creditor and has left the deed as it stands between the parties. The law does not go to the extent of putting the grantor back in stahi quo — a position of advantage which he could not secure by an independent action against the grantee with whom he would be, on that theory, in pari delicto. The power of the court to set aside a fraudulent conveyance at the instance of creditors is derived from one of our oldest statutes—Gr. S., 39-15—in which it is expressly stated that such conveyances “shall be deemed and taken (only as against that person, his heirs, executors, administrators and assigns, whose actions, debts, accounts, damages, penalties and forfeitures by such covinous or fraudulent devices and practices aforesaid are, shall, or might be in anywise disturbed, hindered, delayed or defrauded) to be utterly void and of no effect.” (Italics supplied.) The judgment in the respect noted is in excess of the jurisdiction of the court, and that part of it is not merely irregular, but void, and, therefore, ineffectual to transfer the title of the land back to Caesar Fort. Rachel Fort was not put to any election under Caesar’s will. She did not offer the will for probate or qualify as executrix; she got nothing from the estate in lieu of the attempted devise of a portion of her own property, and nothing was offered. On the contrary, she and the appellants herein seem to have carried the burden of satisfaction of all the claims against Caesar, along with other obligations for which she was surety. Benton v. Alexander, 224 N. C., 800, 32 S. E. (2d), 584. Rachel Fort’s joinder with some of the devisees under the will (now represented by the petitioners) in the execution of two mortgages, introduced here as admissions against her interest, and evidence of a like character to the effect that she claimed only a life estate, are not available as an estoppel against the assertion of a full fee simple title by the appellants, since petitioners are not attempting to assert a title acquired after *462 such declarations or in any way affected by them. There was no reliance or action by any of the parties based upon any such representations or characterizations of her interest which would work an estoppel in pais or-by record. The basis of our decision does not require us to pursue the incidents of trial further. The petitioners, or plaintiffs, in this action and those of like interest named as respondents, have shown no title in themselves, and the proceeding should have been nonsuited on the motion of the defendants-respondents. The judgment to the contrary is Reversed.