Clay v. Clay

130 S.E.2d 309, 259 N.C. 251, 1963 N.C. LEXIS 524

Opinion

Per CuRiam.

For the purpose of testing the sufficiency of the complaint the demurrer admitted that the defendant claims title to the land 'described in the complaint under a tax foreclosure proceeding to which the plaintiffs, -remaindermen who each owned a one-twelfth interest in the land, were not made parties. The defendant demurred, and the demurrer was sustained, on the erroneous assumption that the plaintiffs may not collaterally attack the validity o.f the judgment in the tax foreclosure proceeding. This proposition was decided adversely to the defendant in Eason v. Spence, 232 N.C. 579, 61 S.E. 2d 717, an ejectment action in which plaintiffs claimed land under a tax-sale foreclosure proceeding to which the remaindermen were not parties. This Court said, “The interest of the remaindermen was not affected by the judgment in the tax foreclosure suit, or by any proceeding had under it. . .A judgment void for want of jurisdiction is open to attack in a collateral proceeding.”

Under G.S. 41-10 each of the plaintiffs was entitled to maintain this action against the defendant to determine the validity of defendant’s adverse claim to his one-twelfth interest. Wells v. Clayton, 236 N.C. 102, 72 S.E. 2d 16.

The judgment sustaining the demurrer and dismissing the action is

Reversed.