McIver v. Stephens

Davis, J., (after statmg the case). The learned counsel for the defendants in his brief insists that the special pr> ceed-ings, under which the land in question was sold, were irregular and invalid, and that the deed of the commissioner, under which the plaintiffs claim, “ is fraudulent, inoperative, and void.” It is said that Burton P. Stephens was a minor when the petition ivas filed in June, 1880, and that no answer was put in by him. Though he was a minor when the petition was filed in June, 1880, it further appears from the record that the summons was served on him in May, 1882, and he was then of age, and it also appears from the petition that the •defendant S. E. Stephens, by whom the petition was verified, [260] and said B. P. Stephens, were the devisees, and, at most, the proceeding on that account could only have been irregular, not void. England v. Garner, 90 N. C., 197. There was no error in excluding the evidence offered to show that the purchasers did not pay cash for the land, nor in excluding that offered to show that the purchasers, by their deed, had more than 300 acres of land. The proceedings under which the land was sold cannot be attacked collaterally by such evidence. For the same reason, the exception to the exclusion of the testimony of J. L. Stephens, one of the executors, offered to show that he did not know of the special proceeding till after the sale, must be sustained; and it is for the same reason, that the charge of his Honor, excepted to, must be sustained. The facts appearing in the record show that the proceedings under which the land was sold were irregular, and the excluded evidence, the exceptions, and the argument of counsel for the defendants, would be entitled to consideration in a direct proceeding to annul the sale, but they do not avail in this action, for the judgment was not void, and cannot be attacked collaterally. The Court had jurisdiction of the parties and of the subject-matter. Edwards v. Moore, 99 N. C., 1, and the cases there cited; England v. Garner, supra; Doyle v. Brown, 72 N. C., 393; Grimes v. Taft, 98 N. C., 193, and cases there cited. There was no error in refusing to submit the issues tendered by the defendants. It was embraced in the first issue that was submitted. Affirmed.