Opinion · Supreme Court of North Carolina
Den Ex Dem. White v. Albertson
Den Ex Dem. White v. Albertson, 14 N.C. 241 (N.C. 1831)
- Type
- Opinion
- Court
- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1831-12-05
- Topic
- general
How later courts describe this case
- differentiating between a valid judgment against a represented minor and an invalid judgment by default against minors not represented
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UpLaw has not yet analyzed Den Ex Dem. White v. Albertson. The absence of a flag is not a finding that it is good law.
- Cited by
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WHITEv. ALBERTSON,14 N.C. 241(1831)
DEN EX DEM. CALEB WHITE v. WILLIAM ALBERTSON.
Supreme Court of North Carolina
(December Term, 1831.)
2. A judgment cannot be collaterally impeached for error; if rendered according to the course of the court, however erroneous, it is valid until reversed.
3. Although satisfaction of a decree against an executor who has fully administered, can now be had out of the lands of the testator only upon a bill against the heir, yet a sale under an order made upon asci. fa. is valid.Page 205
4. A judgment bynil dicitagainst an infant heir is not void, but only erroneous.
5. Where judgment was rendered against an infant upon process issuing against his guardian, who appeared for the infant, this appearance, although irregular, is taken to have been sanctioned by the court.
6. A judgment is void when rendered contrary to the course of the court, but if improperly rendered against a party when it should have been in his favor it is only erroneous.
The plaintiff then introduced the record of a suit in equity against John B. Blount, the executor of William T. Muse, in which the plaintiff had obtained a decree for $1,935, and on which, as the plaintiff admitted the executor to have fully administered, ascire faciaswas ordered to issue "to the heirs and devisees of Muse, by their guardian, John B. Blount." In pursuance of this order ascire faciasissued reciting the decree and the descent of lands, and directing the sheriff "to make known to the said John B. Blount, guardian to the heirs of the said William T. Muse, that he appear," etc., which was endorsed "Service accepted. J. B. Blount, guardian of J. B. and W. T. Muse, per Thomas M. Blount." Afterwards an entry was made "that execution issue to "sell the land for the amount of the decree." An execution issued according to this order, and the lessor of the plaintiff purchased at sheriff's sale and took a deed to himself. The plaintiff also proved that John B. Blount was the executor of Muse and guardian to his children, and contended that as the defendant claimed under him, he was estopped to deny his title, and could not set up an equitable defense in this Court. But his Honor being of a different opinion, a nonsuit was entered and the plaintiff appealed.
The process ofsci. fa. against heirs to enforce a decree in equity against the executor or administrator of the ancestor upon a deficiency of assets, until declared to be improper by this Court, in the case ofJeffreys v. Yarborough(1 Dev. Eq. Cases, 506), a decision in which I did not concur, was the common and ordinary mode of proceeding. We cannot impeach the judgment for that irregularity. It would unsettle too much property. Nor can we impeach it, because a default or judgment bynil dicitwas taken against the infant heirs; for this is only error, but does not render the judgment null. The only objection which has the appearance of solidity is, that the defendants, the heirs, were not made parties; and if the fact be so, the judgment is void, for there can be no judgment but against one in court. It is not according to the course of the court to render judgment against one not brought into court. Thesci. fa. in this case is not against the proper person. It should have been against the heirs themselves. But when the service was admitted by John B. Blount, the guardian of J. B. and (243) W. T. Muse, we must then consider J. B. and W. T. Muse as in court. For that court was the proper judge. It is so decided, and it cannot be contradicted in this collateral way, whether they were properly in court, whether John B. Blount was their guardian, or whether it was competent for Thomas H. Blount to admit service for John B. Blount, for it is evident that these points were either expressly or impliedly so adjudicated by the court. The court may have erred, and certainly acted very unadvisedly in permitting the executor to defend as guardian, for on his full administration it depended, whether execution was to issue against him or the heirs. The judgment therefore is not void, neither is it taken contrary to the course of the court.
The lot was sold as the property of the heirs of William T. Muse, and it was proved that the defendant declared that Muse and one Mullen purchased it for him, and that when he paid the purchase money it was to be his, and that he had paid the money. The plaintiff showed no conveyance but the sheriff's deed. The defendant showed no title. As to setting up an equitable title, it has been long since exploded for reasons much better than I can give. I can see no reason why, after the declaration that the defendant held under Muse, or that Muse had the legal title, and that he had only an equitable one, when sued by Muse, his acknowledged trustee, or a purchaser under him, that he should put the plaintiff to the proof of that which he had admitted. The adoption of such a rule would destroy all confidence between man and man. It is true that the admission does not give Muse a title, for that would be to give him one by mere parol, but it requires that the defendant should not retain that possession against Muse, which he acquired from Muse in confidence, and as hisquasitenant. AfterPage 207having surrendered that possession he may controvert Muse's title, but he shall not weaken it by setting up a possession thus confidentially acquired. In this case, however, the plaintiff upon this evidence is entitled to recover possession of one-half only, for the defendant obtained it under Muse and Mullen, and the plaintiff represents (244) the former only.
When I say that thescire faciasshould have issued against the heirs of Muse, and not against their guardian, I do not mean that it must be against the heirsby name, for I think that ascire faciasdirecting the sheriff to make known to the heirs generally, without naming them, would be good.
A judgment is void and confers no rights againstany one(wherever and however it may be introduced, either directly or collaterally) when it is takencontrary to the course of the court. It is erroneous when the court mistakes the law and renders judgment for one party, when upon the record it should have been rendered for the other, or rather when a judgment different from the one given should have been rendered, but in that case it is as binding until reversed, as if it were not erroneous.
PER CURIAM. Judgment reversed.Cited: Skinner v. Moore,19 N.C. 150;Burke v. Elliott,26 N.C. 359;Newsom v. Newsom, ibid., 389;Keaton v. Banks,32 N.C. 384;Turner v.Douglas,72 N.C. 132;McAden v. Hooker,74 N.C. 29;Moore v. Gidney,75 N.C. 41;Larkins v. Bullard,88 N.C. 36;England v. Garner,90 N.C. 211;Fry v. Currie,91 N.C. 437;Spillman v. Williams, ibid., 487;Harev. Holloman,94 N.C. 21,22;Sumner v. Sessoms, ibid., 376;Tate v. Mott,96 N.C. 25;Morris v. House,125 N.C. 563;Ditmore v. Goins,128 N.C. 327;Rackley v. Roberts,147 N.C. 208;Phillips v. Denton,158 N.C. 303;Harris v. Bennett,160 N.C. 343;Finger v. Smith,191 N.C. 820.