Edwards v. . Moore

Davis, J., (after stating the case). The lands of T. J. Bland, deceased, were sold in 1869, at a judicial sale, made under an order in a proceeding instituted by his administrator against his heirs at law to make assets to pay debts, and this action was commenced in 1885, more than fifteen years after, by the plaintiffs, who are some of the heirs at law of said T. J. Bland, to recover land so sold, and this right to recover is based upon the alleged ground that they were not parties to the proceeding under which the land was sold by the administrator. They proposed to show in this action, by T. B. Bland (their brother, who was also one of the heirs at law and one of the defendants in the proceeding, the judgment in which, they insist, was void as to them), that he accepted service for them, not in their presence, and without their sanction or authority. This cannot be allowed in this action. Assuming the facts to be as alleged, and that T. B. Bland signed their names to the acceptance of service of the summons without any authority therefor, the Court in the exercise of its power to amend its records and vacate an irregular or erroneous judgment, should be careful and cautious in the exercise of that power, when not only the interests and rights of persons acting upon the integrity of judicial proceeding are involved, but where, after long delay, no meritorious reason is given for the correction. In this case, if the proceeds of the land were applied to the payment of the debts of the ancestor for which the land was bound, it would — so far from being meri *4 torious — be unjust to permit the plaintiffs to recover from the purchaser and hold the land discharged of the debts of the ancestor which the money of the purchaser had paid. Weaver v. Jones, 82 N. C., 440; Doyle v. Brown, 72 N. C., 393. In the latter case the action was properly instituted for the direct purpose of vacating a decree made in an action to which it was alleged the plaintiff was not a party, but it was said the record “ must stand until vacated.” In a direct proceeding to annul the judgment the right of all parties may be protected, but as long as the judgment and order of sale remain, though the proceeding be irregular, yet if not void the judgment cannot be collaterally impeached and the conveyance authorized by it must stand. The judgment can only be vacated by a direct proceeding for the purpose. The judgment in this case was not void. Sumner v. Sessoms, 94 N. C., 371; Cates v. Pickett, 97 N. C., 21, and the cases there cited. There is no error.