Johnson v. Futrell Bros. Lumber Co.

Plaihtiff’s Appeal. Devin, J. The plaintiff appealed from the order of the court below remanding the cause to the clerk and holding that her only remedy was by motion in a special proceeding heretofore determined. She contends that having instituted in the Superior Court an action cognizable in that court, the trial judge was in error in remandng the cause to the clerk, and in that view we concur. The plaintiff alleged that in a special proceeding to which she was a party there was a consent decree entered that the timber on the land be sold for division, with provision in the order that the timber be cut and removed within nine months, and that this period expired 21 March, 1944. She alleged that defendants, the purchasers, were attemptng to cut timber on her land after that date. She sought to restrain them from so doing, and to establish her right to timber cut and not removed within defendants’ term, and also to recover damages for injury to her cultivated land caused by defendants’ operations. Upon this the defendants joined issue denying the decree was by consent, and alleging offer, acceptance and sale to them of the timber on twelve months time for $3,300, confirmed by the clerk. They allege estoppel in pais, set up counterclaim, and plea for recovery of a portion of purchase price. Plaintiff having alleged that the defendants wrongfully were attempting to cut timber on her land beyond the time limited in the consent decree in the proceeding under which the defendants purchased, and that defendants wrongfully had caused injury to plaintiff’s cultivated lands, plaintiff’s action for restraining order and for damages based on these allegations would be maintainable in the Superior Court. Her action may not be regarded as a collateral attack on the judgment in the special *598 proceeding, but rather an action founded upon the consent decree therein for relief against defendants for wrongfully cutting her timber after defendants’ rights had expired. Hargrove v. Wilson, 148 N. C., 439, 62 S. E., 520, cited by defendants, is not in point. That was an action in term time to set aside a decree and sale in partition on the ground that plaintiffs had not been made parties. Since it appeared on the face of the record that they had been made parties, it was held that a motion in the cause in that case, rather than an independent action was the proper remedy. If the original order of sale was a consent decree, as alleged, the court had no power to change its terms without consent of all parties, except on the ground of fraud or mistake. Keen v. Parker, 217 N. C., 378, 8 S. E. (2d), 209; Jones v. Griggs, 223 N. C., 279, 25 S. E. (2d), 862. And the commissioners could convey only in accord with the terms of the order. Morehead v. Bennett, 219 N. C., 747, 14 S. E. (2d), 785; Trust Co. v. Refining Co., 208 N. C., 501, 181 S. E., 633; 31 Am. Jur., 433. The purchasers were chargeable with notice of the proceeding under which they purchased and were bound by the limitations upon their rights appearing on the face' of the record. Butler v. Winston, 223 N. C., 421, 27 S. E. (2d), 124; Graham v. Floyd, 214 N. C., 77, 197 S. E., 873; Bladen County v. Breece, 214 N. C., 544, 200 S. E., 13; Whitted v. Fuquay, 127 N. C., 68, 37 S. E., 141. Upon the facts alleged by the plaintiff in her pleadings, we think there was error in remanding the cause to the clerk. DEFENDANTS’ APPEAL. The defendants appealed from so much of the judgment below as overruled their demurrer ore tenus on the ground that the complaint did not state facts sufficient to constitute a cause of action. Giving to the plaintiff’s allegations that liberal construction enjoined by the statute and by the decisions of this Court (Blackmore v. Winders, 144 N. C., 212, 56 S. E., 874), we do not think the complaint can be overthrown by demurrer as insufficient to state a cause of action. The demurrer was properly overruled and the judgment in that respect is affirmed. On plaintiff’s appeal: Error and remanded. On defendants’ appeal: Affirmed.