Ward v. . Lowndes

Merrimon, J., (after stating the facts). It is very apparent that the two special proceedings in question, in which the land in controversy vras sold, were intended to serve the same purpose — that is, to effectuate the sale of the land of the testator of the plaintiff therein named, to make assets to pay debts of the testator. Conceding irregularities — serious ones — in the first of them in order of time, the second was intended to cure these, and we think it had that effect, in most material respects. The *377 latter proceeding was competent for this purpose certainly, as the administrator cum testamento annexo, plaintiff in both of them, and the purchaser of the land at the sale of it in pursuance of orders in both, consented thereto, and the present plaintiffs were concluded by them, if they were parties defendant. The plaintiff administrator in them and the purchaser at the sale of the land, cannot complain that there were two proceedings, because the former brought and was party 'plaintiff in both, and both he and the purchaser accepted— acted under and in pursuance of — orders and decrees therein, and were therefore concluded by them. The present plaintiffs cannot be heard to complain, because, if they were parties defendant in them, particularly the second one in order of time, as the Court decided they were, and they are concluded, haying had their day in Court. Any possible mistake or misapprehension in bringing these proceedings before the clerk, as Judge of Probate, or otherwise, when the same should have been brought in the Superior Court, or vice versa, cannot help the plaintiffs, because such mistakes and irregularities in that respect, in these and like proceedings, have been cured and made effectual by statute. (Actsl870-’71, chap. 108, §1; Battle’s Revisal, ch. 17, §§425, 426.) The validity of this statute has been settled by repeated decisions in this Court. Bell v. King, 70 N. C., 330; Hurdle v. Outlaw, Ibid., 334. Infants — residents or non-residents of this State — like adult persons, may sue and be sued in its Courts in accordance with the prescribed methods of procedure, and judgments for or against them are just as effectual and binding upon them as in case of adult persons, unless otherwise provided by statute. Tate v. Mott, 96 N. C, 19. They cannot, however, regularly prosecute actions or special proceedings without the aid of a general or testamentary guardian, if they have such in this State, and in the absence *378 of such, they must sue by their next friend. And so, also, when they are defendants, they must defend by their general or testamentary guardian, if they have them in this State— otherwise by a guardian ad litem, to be appointed by the Court as prescribed by the statute {The Code, §181). This statute should be strictly observed, but mere irregularities in observing its provisions, not affecting the substance of its purpose, do not necessarily vitiate the action or special proceeding, or proceedings in them. The substantial purpose of this statute is, to have infants, in proper cases, made parties defendant, have them make proper and just defence, and to have their rights protected, and to this end, to have guardians to make defence for them. They are not presumed to have sufficient intelligence and discretion to act for themselves — to care for and protect their rights of person and property. lienee the law has a tender regard for them, and the Court will see on all proper occasions, that they and their rights are duly protected in all judicial proceedings affecting them. Courts must obtain jurisdiction of infant defendants just as if they were adults, except as to those under fourteen years of age. As to them, they must be served personally with the summons, by delivering a copy thereof, and the delivery of a copy thereof to the father, mother or guardian, or if there be none in the State, then to such person as may have the care or control of the infant sued. {The Code, §217, par. 2). And if the infant defendant be a non-resident, service of process upon him must be made by publication, as prescribed by the statute. {The Code, §§218, 219). Now, in the first of the two special proceedings above mentioned, the infant defendants therein — the present plaintiffs — were not made parties defendant strictly as the statute directed. First, they and their mother were .named as defendants. The mother at the time of the bringing of the proceeding, *379 being a feme sole, accepted service of the summons and petition, and filed her answer therein. The testamentary guardian of Samuel M. Ward, one of the infant defendants, therein — one. of the present plaintiffs — likewise accepted service of the summons and petition for his ward, and filed his answer. The other infant defendants therein — Joanna and Florence — two of the present plaintiffs, had no general or testamentary guardian in this State, but, at the suggestion of their mother, made in her answer, the Court appointed Thos. L. Gash to be their guardian ad litem. He therefore filed an answer for them. But there was no personal service of summons upon any of the infant defendants. They were nonresidents, and no service of process by publication was made as to them. The Court, nevertheless, made an order of sale, and the land in question was sold, and the sale confirmed. It may be, that the orders and judgments and the sale made in this-proceeding, were rendered effective by subsequent curative statutes, but we need not so decide, because, afterwards, the administrator mentioned brought a second like special proceeding, as we- have seen above, in which proper summonses, were issued; the sheriff returned that the defendants were not to be found in his county; an order of service of process by publication was made, and publication was made. The learned counsel for the apellants insisted on the argument, that the order of publication, the publication of notice,, and the appointment of a guardian ad litem for the infant defendants in this proceeding, were irregular in several respects, and void. There may have been irregularities, but none such appear as, in our judgment, rendered the service by publication void. And moreover, and what is more important, the Court decided that service had been made by publication, and took jurisdiction of the defendants. *380 It is further decided, that a guardian ad litem for all the infant defendants had been appointed. This guardian was recognized by the Court as such, and he filed an answer for all the infant defendants. It was certainly competent for the Court to make such decisions, although they might he erroneous, and such decisions would not be void; they could only be corrected in a proper way. Having so decided, and thus taken jurisdiction of the parties and subject matter of the proceeding, the Court proceeded to hear and determine the whole proceeding upon the merits, and made appropriate orders and decrees to accomplish its purpose. The purpose was accomplished and the proceeding ended. The action of the Court may have been in some respects irregular; there may have been errors of law in its decisions, orders, decrees, and judgments, but these were not such as rendered the proceeding absolutely void. -It remained operative and effectual until such irregularities and errors should he corrected in a proper proceeding for that purpose. This action is not a proper remedy to correct such errors. This could be done only by appeal from such orders and judgments in the proceeding, as an appeal lay from, taken at the proper time, or by a proceeding as a substitute for an appeal. Nor is it a proper remedy to correct or take advantage of such irregularities. This could be done only by a proper motion for that purpose in the proceeding itself, made within a reasonable time. This is the settled course of procedure in such respects. Grantham v. Kennedy, 91 N. C., 148; Williamson v. Hartman, 92 N. C., 236; Fowler v. Poor, 93 N. C., 466; Syme v. Trice, ante, 243. The plaintiffs allege veiy vaguely, that the special proceedings in question were fraudulent and void. It is, however, found as a fact, “ that there was no actual fraud or collusion,” and it was not contended on the argument before us, *381 that there was. The Court held, and we think properly, that, there was no constructive fraud, as contended by the plaintiffs. The slight facts relied upon to prove it may have been some evidence of positive fraud, but they develope no such relations of parties, and acts done, and not done that ought to have been done, as constituted constructive fraud. The counsel for the administrator was not the counsel of the defendants in the special proceedings, nor did they act, or profess to act, for them. The mere fact that Whitmire, the administrator — it seems for the convenience of the clerk— wrote the summons, cannot be held to be constructive fraud. The purchaser of the land, Lowndes, directed the deed for it to be made to his wife, and the administrator did so make it. This is made a ground of objection by the plaintiffs. It seems to us to be wholly without merit. The purchase money was paid as required by the order of the Court, and the administrator was directed to make title to the purchaser. Why might he not make i£ to such person as the purchaser directed — to his wife ? His power to convey to the purchaser was complete; the purchaser was entitled to have the deed made to him. Why not to have it made to such person as he might indicate ? We can see no legal reason why he was not. It has been repeatedly held that the purchaser at such and like sales might “assign his bid,” and the sheriff or commissioner charged to make the title, could make the same to the assignee. Smith v. Kelley, 3 Murph., 507; Shamberger v. Kennedy, 1 Dev. 1; Testerman v. Poe, 2 D. & B., 103 ; Campbell v. Baker, 6 Jones, 255. This case has been elaborately and ably argued by the learned counsel for the appellants, but he has failed to satisfy us that we ought to accept the conclusions reached by him. Our judgment is, that there is no error, and the judgment of the Court below must be affirmed. No error. Affirmed.