Spencer v. . Credle

Avery, J. (after stating the case). We concur with his Honor in the opinion that the plaintiffs were not entitled to recover, in any view of the testimony offered and the facts admitted, and the timely intimation given by him was calculated to expedite the transaction of business, without peril *73 to the rights of the parties. The plaintiffs contend in this •Court: 1. That the decree in the special proceeding was void and must be treated as a nullity for the reason that article 4, section 17, of the Constitution of North Carolina, then required that “all issues of facts joined before them” (referring to the Clerks of Superior Courts) “shall be transferred to the Superior Courts for trial, and appeals shall be to the Superior Courts from their judgments in all matters of law,” and that, therefore, a final judgment rendered by the Clerk, without docketing the cause and awaiting the verdict upon the issues framed, was made, when by law the case was not pending before him and within his jurisdiction. 2. That the order of sale was not signed, and if that objection did not lie, it was void upon its face, because the Clerk had no power to appoint himself commissioner. 3. That in any view of the case an order made by the Clerk that he, himself, pay over the funds in controversy to Beckwith for Gibbs, was void, and would not protect him against the rightful claimants of the money. The plaintiffs might have instituted a new proceeding before the Clerk to vacate, for irregularity, the decree in Lancaster et al. v. Mary L Spencer et al., but they have chosen rather to bring an action upon the official bond of the deceased Clerk, Sadler, against his administrator and the sureties, and have elected to treat the sale as valid and regular. If the order of sale was void, not simply voidable, for irregularities in the proceeding, then the sale was a nullity; and if the title to the interest of John W. Spencer, one undivided sixth, were still in the plaintiffs, they would have the right (after reasonable notice to be let into possession with tenants in common, who may have ousted them) to recover possession in an action brought against such tenants. If *74 the order was simply voidable for irregularities, it cannot be impeached collaterally; but could be vacated by a proceeding begun before the Clerk for the purpose. We do not think that the failure of the Clerk to frame the issues raised by the pleadings, and to enter the case for trial on the docket of the Superior Court, or the fact that such issues do not appear to have been tried by jury at all, affects the validity of the judgment, in the absence of any record showing that the parties before the Court appealed from the order at the time, or attempted afterwards to have it set aside by motion in that proceeding, or vacated by a new action. It is not necessary for us to determine which was the proper course. The authorities cited by counsel do not sustain the view that the order of sale and subsequent decree were void because made in violation of article 4, section 17, of the Constitution of 1868. In the cases of McBryde v. Patterson, 73 N. C., 478, and Jones v. Hemphill, 77 N. C., 42, there was an appeal under section 116 of The Code (brought forward from Code of Civil Procedure), which provided that in case of transfer or appeal a party should not be required to give bond for cost, but that an appeal could be taken by “ a party aggrieved, who appeared and moved for or opposed the order or judgment appealed from, or who, being entitled to be heard thereon, had no opportunity of being heard, which fact may be shown by affidavit or other proof” If the parties were before the Court, then the “ record, including the recitals, import verity and binding effect upon the parties everywhere. They cannot be heard to allege the contrary or attack the judgment in a collateral proceeding or action.” Brickhouse v. Sutton, 99 N. C., 103. We think that the parties, including the plaintiffs Mary L. Spencer and John W. Spencer, P. P. Spencer and W. H. Spencer, through whom she claims, were all before the Court. At any rate, they cannot raise the objection that the service of summons by publication was irregular, and they cannot *75 attack collaterally any part.of the record made before the parties answered, or were all brought into Court, in the manner adopted, and not subject to be questioned in this action. Sumner v. Sessoms, 94 N. C., 371. The parties, then, having been brought before the Court, were charged with notice of any order subsequently made by the Court while the action was pending. University v. Lassiter, 83 N. C., 38. We think that if the parties were in Court, as the law presumes that they were, when the order of sale was made, and did not object or appeal, as any one of them could have done, without even filing an appeal bond, and being still before the Court they made no objection to the final decree, dated March 8, 1872, nor any motion in the cause at any time to impeach any order for irregularity,'until after summons issued in this action, May 27, 1881, it would he fair to presume that the defences raised by the pleadings were abandoned at the hearing, and the transmission of pleadings and trial of issues were then waived by the parties. In that view of the matter, it would not be necessary to decide whether the Constitution made the duty of docketing for trial mandatory, for even if it were not merely directory, under all the circumstances, after the long lapse of time, the courts would presume that the Clerk acted rightly, and that the parties waived the trial of the issues by failing to insist upon the ground of defence set up. The objection, that the order of sale was not actually signed by the Clerk, would be covered by the principles laid down in Sumner v. Sessoms, supra; but if that were not true, and the question of the validity of the order for want' of the signature of the Clerk were an open one, the Court has declared that the statute requiring such signature is merely directory. Keener v. Goodson, 89 N. C., 273 ; Rollins v. Henry, 78 N. C., 342. *76 It has been too long the custom for clerks to make orders ■appointing themselves commissioners to sell land, in such proceedings, and to order an account to be taken by themselves, and the validity of such orders has been too often acquiesced in or approved by the courts, to allow the judgment to be now declared void because a Clerk appoints himself commissioner. Whatever objections may be urged to the custom, it has often proven a positive benefit to litigants in subjecting the Clerk’s bond to liability for the proceeds of sales made by virtue of such orders; whereas, the appointment of an insolvent commissioner would have left ■the parties without remedy, in case of default in paying over the proceeds of land sold under a judicial decree. State v. Blair, 76 N. C., 78. Besides, it has long since been settled, •that where there are adversary parties in a special proceeding, the'approval of the Judge of the Superior Court is not requisite to the validity of any order made in it, but the Clerk has full power to make all orders up to the final confirmation, except in cases where an ex-parte petition is filed, and some of the petitioners ore infants. Stafford v. Harris, 72 N. C., 198; Mauney v. Pemberton, 75 N. C., 219. This was not an ex-parte proceeding, and Sadler had the power to render the final decree. In the petition first filed in Lancaster v. Spencer, it was alleged that Henry S. Gibbs had a liento secure about $400 on the interest of John W. Spencer in the lands of Henry S. Spencer, described in the petition. Subsequently, as appears from the record, Gibbs was made a party, and at a still later period, but during the pendency of the proceeding, he recovered a judgment on attachment against John W. Spencer for $310.02; and in the final decree Gibbs was adjudged, “on the hearing of the issues made by the pleadings,” to be the owner of the interest of John W. Spencer in the lands. As between the parties, that adjudication is conclusive, whatever irregularities may appear in the orders connected with *77 the attachment, and it is needless to go behind the final decree to discuss the partial record of the allotment and the-agreement of counsel relating to it. The petition was filed in September, 1871, and the final decree of confirmation was made on the 8th of March, 1872. P. P. Spencer, and his wife Mary L. Spencer (the present, plaintiff), were made parties, and set up in their answer the defence, that John W. Spencer, aRo a party to the action, had conveyed his interest in the land to them (by deed dated December 31, 1866, and recorded January .21, 1867), and that Henry S. Gibbs was not the owner of said interest. The defendant W. H. Spencer, and those claiming under him, are estopped to deny, upon the principles already stated,, that he was also a party; yet the plaintiffs seek to establish their right to the share of John W. Spencer-in the proceeds of sale under the deed from P. P. Spencer, set up in their answer (as to the validity of which deed Mary L. Spencer, John W. Spencer and W. H. Spencer are concluded by the decree, and by the two other deeds of conveyance, for the-undivided interest of John W. Spencer, the one from P. P. Spencer to W. H. Spencer, dated December 31,1866, and the other from W. H. Spencer to the plaintiffs, dated January 1,. 1872). If W. H. Spencer relied on -the conveyance from P. P. Spencer to himself, he might have pleaded his title, but, instead of doing so, he permitted the latter to set up a claim in himself, and afterwards, as we must assume, to abandon the issue. After the petition had been filed for four months, and two months before the final decree, W. H. Spencer attempted to convey the interest in controversy by deed dated January 1, 1872, to the plaintiffs, Mary L. Spencer and her four children. Mary L. Spencer filed an answer, but if she had not been bound by the decree of March 8, 1872, as-a party, she and the other plaintiffs must be deemed to have had constructive notice of the pendency of the action, when *78 W. H. Spencer conveyed to them, and, therefore, to be bound by the final judgment in that suit. There can be no doubt that the lands were described with sufficient certainty in the petition, to give notice to the plaintiffs, even if they are to be treated as purchasers for a valuable consideration, and it also appears from the pleadings'that the land was located in Hyde County. While strangers to the record are not affected with constructive notice, of the pendency of an action involving the title to land lying in a county other than that in which the action is pending, unless the notice required under section 229 of The Code has been given, even purchasers for a valuable consideration are affected with notice of an action brought in the county where the land lies, if the pleadings describe it with reasonable certainty, and take title, subject to the final decree rendered in the action. A different rule has been adopted in some other States, where the same statute has been passed, but the law has been settled in this State by the cases of Todd v. Outlaw, 79 N. C., 235, and Badger v. Daniel, 77 N. C., 251. There was, therefore, no view of the testimony in which the plaintiffs were entitled to recover, and the judgment must be affirmed. Affirmed.