Lowdermilk v. . Butler

109 S.E. 571, 182 N.C. 502, 1921 N.C. LEXIS 259

• Court: Supreme Court of North Carolina
• Decided: November 23, 1921
• Status: Published

Opinion

Walker, J.,

after stating tbe case: We will consider tbe questions raised by this appeal in tbe order of their statement in tbe assignments of error, briefs and argument before us.

1. Tbe plaintiff attacks tbe last deed on tbe ground that on 5 July, 1912, tbe Secretary of State certified to tbe clerk of tbe Superior Court of Moore County that tbe Piedmont plantation Company on that date bad filed its consent in writing to tbe dissolution of tbe corporation, executed by tbe requisite number of stockholders, Raphael W. Pumpelly being tbe agent therein named and in charge thereof, and that tbe corporation could not thereafter convey its property. This contention, as we think, is based upon a misconception of tbe statute. Tbe corporation did not cease to exist at tbe date of tbe filing of tbe certificate of dissolution, as contended by appellant, but continued three years from that date as a body corporate, by'express provision of C. S., sec. 1193, wbicb is, that all corporations whose charters expire, by their own limitation, or are annulled by forfeiture, or otherwise, shall continue to be bodies ■corporate for three years after the time when they would have been ■dissolved, “for the purpose of prosecuting and defending actions by or against them, and of enabling them gradually to settle and close their concerns, to dispose of their property, and to divide their assets,” etc. But the defendant relies upon the provisions of the next section (1194), which is above set out, in our statement of the case. It appears therefrom that the “directors, as trustees, may-sell and convey the corporate property upon such terms as they may prescribe,” but this does not exclude the idea that, in conveying the property, they may not do so in the name of the corporation in whom the legal title was originally vested. It may be conveyed in the name of the corporation by their order or direction, or perhaps they may convey it in their own names as directors and trustees. It appears in this record, and in the certificate ■of probate, as a fact judicially found by the clerk of the Superior Court, that the deed was made in the name of the corporation by order of the ■directors who, under the statute, were the trustees. So that the statute was fully complied with.

By reason of his appointment as agent in the dissolution proceedings ■of the corporation, it is probable that E. ~W. Pumpelly concluded he was thereby made the assignee of the mortgage, and out of abundance of caution joined the corporation in the sale of the land and in the execution of the deed to the plaintiff. If he was not such assignee, his joining in the sale, and in the execution of the deed, were harmless acts.

2. The defendant, through his counsel, further contends that on 25 September, 1909, O. S. Frye recovered a judgment for $26.89 against A. Legler, before a justice of the peace of Moore County, which was filed and docketed in the Superior Court on 21 July, 1911, more than a year after its rendition, and that execution issued on it from the Superior Court, and the land in controversy was levied on as the property of A. Legler, and sold and conveyed by the sheriff to G-. H. Humber, from whom, by mesne conveyances, the defendant claims title.

It is well to observe, in passing, that the judgment roll, introduced in ■evidence by defendant, shows that all of the executions issued to the sheriff on this judgment were returned by him without action, even down to 6 May, 1918, and the clerk was still issuing executions thereon so late as 1 April, 1921.

In order to sustain the claim of title by the defendant under the sheriff’s sale and deed, the appellant’s counsel frankly admitted that it is necessary for this Court to overrule several of its well-considered decisions heretofore rendered and to upset a doctrine which has existed and been recognized as a rule of property for well-nigb balf a century. Williams v. Williams, 85 N. C., 383; Woodard v. Paxton, 101 N. C., 26; Cowen v. Withrow, 114 N. C., 558. No good reason bas been advanced for such action on our part. What this Court would decide, if tbe question were res nova, or presented now on its legal merits, for tbe first time, it is futile to declare, as we are satisfied tbat those cases should stand unmolested, after such repeated adjudications, as it is tbe interest of tbe State tbat there should at some time and somewhere be an end of controversy. Some questions may fairly and justly be considered as closed by the former decisions of this Court, and especially where rights of property are involved, and even those of contracts, in some cases, in order that it may be known how to deal safely in our daily transactions. We should impart firmness and stableness to them, so that what we have declared to be the law in the past may not be easily assailed and overthrown in the future, thereby impairing public confidence in the integrity, permanency and reliability of what we may decide to be the rule of reason, and of conduct, which is sanctioned by the law. This is essential that our judgments may acquire permanency and become trustworthy, and never subject to change, unless after maturer consideration we may be convinced that there is palpable error, and that it is better to retrace our steps and change our former decisions because of the greater benefit to be derived therefrom. But such instances are very rare, and if possible should be reduced to the minimum, as change in our opinions is far more apt to result in harm than in any indispensable benefit. Stare decisis et non quieta mov'ere, the Latin phrase, which means to stand by decided cases and uphold precedents by maintaining former adjudications rather than unsettle those things which have been established, is one of the ancient maxims, which has improved by its age, and is worthy of the greatest reverence, and the fullest acceptation. It was said many years ago that a point which has often been adjudged should be permitted to rest in peace. Spicer v. Spicer, Cro. Jac., 527 (79 Eng. Reprint, 451); 1 Kent’s Com., 477. The rule expresses the principle, in tangible form, upon which rests the authority and binding force of judicial decisions as precedents in subsequent litigations. When more mildly expressed, the rule means, in general, that when a point has been once settled by judicial decision it forms a precedent for the guidance of the courts in similar cases. The Madrid, 40 Fed. Rep., 677, 679. But it has been said that where grave and palpable error, widely affecting the administration of justice, must either be solemnly sanctioned or repudiated, the maxim Fiat justitia mat coelum should apply, and not the rule of stare decisis. Ellison v. Georgia, etc., R. Co., 87 Ga., 691. As a general rule, where a principle of law has become settled by a series of decisions, it is binding on the courts and should be followed. But it has been determined tbat a single decision is not necessarily binding. Again the maxim Stare decisis is not imperative; and an opinion is not authority for what is not mentioned therein and what does not appear to have been suggested to the court from which the opinion emanates. A decision in conflict with prior decisions, and not supported by reason or authority, will not be adhered to where it is not probable that property rights will be seriously affected, and positive authority of a decision is coextensive only with the facts upon which it is founded. 11 Cyc., 745, and notes; Gage v. Parker, 178 Ill., 455; Lawson v. Bank, 92 N. W., 729. It has been well and wisely said that precedents are to be regarded as the great storehouse of experience; not always to be followed, but to be looked to as beacon lights in the progress of judicial investigation which, although at times they be liable to conduct us to the paths of error, yet may be important aids in lighting our footsteps on the way to truth. Leavitt v. Morrow, 6 Ohio St., 71.

After all has been repeated, that has been, or can be said pro or con upon this important question, we concur in the view taken by a court of the highest authority in another ease, that whatever difference of opinion may have existed in this Court orginally in regard to these questions, or might now exist if they were open for reconsideration, it is sufficient to say that théy are concluded by the former adjudications. The argument upon both sides was exhausted in the earlier cases. It could subserve no useful purpose again to examine the subject. Parker v. W. L. Cotton, etc., Co., 2 Black, 545 (67 U. S., 545), 17 L. Ed., 333.

It all comes to this that former precedents should not be reversed except upon strong and imperious necessity. The Federal Supreme Court, and some courts in other jurisdictions, have held that a decision is not an authority upon a question not considered by the court, though involved in a case decided. Durouseau v. U. S., 6 Cranch, 307 (3 L. Ed., 232); Buel v. Van Ness, 8 Wheaton, 312 (5 L. Ed., 624); New v. Oklahoma, 195 U. S., 252 (49 L. Ed., 182); U. S. v. Mire, 3 Cranch, 159 (2 L. Ed., 397); Cross v. Burke, 146 U. S., 82 (36 L. Ed., 896); McCormick H. Mach. Co. v. Aultman Co., 169 U. S., 606 (42 L. Ed., 875), and other cases cited in notes to 2 Digest U. S. S. C. Reports (L. Ed.), p. 2327.

We admit that the rule which requires us to uphold former decisions upon the same subject is not an inexorable one, nor is it mandatory upon the Court. Hertz v. Woodman, 218 U. S., 205. There is some flexibility in it, and it has been said that it should not be employed to perpetrate error (15 Corpus Juris, p. 956, sec. 357), but the Court will not listen readily, and siirely not with favor, to appeals for reversals of former adjudications, where manifest error is not first shown. But there is none such shown here. With regard to this rule we have ourselves quite recently said that tbe people are supposed to bave confidence in their highest Court, at least to the extent of ascribing to it 'the virtue of consistency and a desire to see that by no lack of stability in its decisions shall any citizen be jeopardized or prejudiced in his rights, because he has simply acted upon the supposition that what the Court has so solemnly determined will again be its decision upon the same state of facts, or that, at least, if it does change its mind, his rights and interests will be thoroughly safeguarded. If courts proceeded upon any different theory in the decision of causes, the people would be left in a state of uncertainty as to what the law is, and could not adjust their business affairs to any fixed and settled principles which would, of course, produce most mischievous, if not disastrous, consequences. Hill v. R. R., 143 N. C., 581. See, also, Mason v. Cotton Co., 148 N. C., 492, and Williamson v. Roban, 117 N. C., 302. A great law writer once said about this rule of the law that he did not wish to be understood to press too strongly the doctrine of stare decisis, when he recollected that there are more than one thousand cases to be pointed out-in the English and American books of reports, which have been overruled, doubted, or limited in their application. It is probable that the records of many of the courts in this country are replete with hasty and crude decisions; and such cases ought to be examined without fear, and revised without reluctance, rather than to have the character of our law impaired, and the beauty and harmony of the system destroyed by the perpetuation of error. Even a series of decisions are not always conclusive evidence of what is law; and the revision of a decision very often resolves itself into a mere question of expediency, depending upon the consideration of the importance of certainty in the rule, and the extent of property to be affected by a change of it. Lord Mansfield frequently observed, that the certainty of a rule was often of much more importance in mercantile cases than the reason for it, and that a settled rule ought to be observed for the sake of property; and yet, perhaps, no English judge ever made greater innovations and improvements in the law, or felt himself less embarrassed with the disposition of the elder cases when they came in his way to impede the operation of his enlightened and cultivated judgment. The law of England, he observed, would be an absurd science were it founded upon precedents only. Precedents were to illustrate principles and to give them a fixed certainty. His successor, Lord Kenyon, was said to have acted like a Roman dictator, appointed to recall and reinvigorate the ancient discipline. He controlled or overruled several very important decisions of Lord Mansfield as dangerous innovations, and on the ground that they had departed from the precedents of former times and disturbed the landmarks of property, and had unauthorizedly superadded equity powers to a court of law. “It is my wish and my comfort,” said that venerable judge, “to stand super antiques vias. I cannot legislate, but by my industry I can discover wbat my predecessors bave done, and I will tread in their footsteps.” The English courts seem now to consider it to be their duty to adhere to the authority of adjudged cases, when they have been so clearly and so often, or so long established as to create a practical rule of property, notwithstanding they may feel the hardship, or not perceive the reasonableness of the rule. There is great weight in the maxim of Lord Bacon, that optima est lex, quae minimum relinquit arbitrio judiéis; optimus judex, qui minimum sibi. The great difficulty as to cases consists in making an accurate application of the general principle contained in them to new cases, presenting a change of circumstances. If the analogy be imperfect, the application may be erroneous. The expressions of every judge must also be taken with reference to the case on which he decided; we must look to the principle of the decision and not to the manner in which the case is argued upon the bench, otherwise the law will be thrown in to extreme confusion. The exercise of sound judgment is as necessary in the use as diligence and learning are requisite in the pursuit of adjudged cases. Considering the influence of manners upon law, and the force of opinion, which is silently and almost insensibly controlling the course of business and the practice of the courts, it is impossible that the fabric of our jurisprudence should not exhibit deep traces of the progress of society, as well as of the footsteps of time. The ancient reporters are going very fast, not only out of use, but out of date, and almost out of recollection. The modern reports, and the latest of the modern, are the most useful, because they contain the last, and, it is to be presumed, the most correct exposition of the law, and the most judicious application of the abstract and eternal principles of right to the refinements of the science of the law relating to property. They are likewise accompanied by illustrations best adapted to the inquisitive and cultivated reason of the present age. But the old reporters cannot be entirely neglected.

Counsel for the defendant in this case very ably and zealously pressed upon us the necessity for overruling several decisions of this Court of comparatively recent date (Williams v. Williams, 85 N. C., 283; Woodard v. Paxton, 101 N. C., 26; Cowan v. Withrow, 114 N. C., 558), on the ground that they were opposed to the mandate of a statute in regard to docketing justices’ judgments and the lien acquired thereby, but we do not think that this is the case, but, on the contrary, that they are not plainly inconsistent therewith, even though a contrary construction may have been permissible. If the reasoning of the Court is not unanswerable, it is not palpably illogical, or erroneous, and defendant has, therefore, not made out a case which will induce us to reconsider those decisions. O. S. Fry was dilatory in docketing his judgment against Alexander Legler, wbicb was done more than one year after its rendition, and those cases clearly decide that this was too late, and he acquired no lien thereby. We adhere, without hesitation, to the former precedents. It may not be absolutely important in this case to decide that question, as we are of the opinion that if the Fry judgment has been docketed within the time prescribed by the statute, the lien of the judgment could not prevail against the title of the plaintiff acquired by him under the deed to Legler, the mortgage back from him to the Piedmont Plantation Company and the deed from them to the plaintiff. The fact, if it be so, that the debt secured by the mortgage had been assigned to R. W. Pumpelly did not show that the Plantation Company had no further interest in the matter, because it held as mortgagee the legal title, which carried with it the power of sale, and it was necessary for the company to join with Pum-pelly in the sale under the power and in the deed to plaintiff in order to a valid exercise of the power (Williams v. Teachey, 85 N. C., 402), and the conveyance of the legal and equitable title, though for the purposes of this action the company having the legal title could convey such an interest as would enable the plaintiff, its assignee, to recover in ejectment. Wit tkowski v. Watkins, 84 N. C., 456, where Justice Ruffin said: “The position taken for the plaintiffs in regard to the point of evidence raised on the trial cannot be questioned. They were so clearly entitled to recover the possession of the land in dispute, upon the strength of their legal title as mortgagees, even if their sale to Jones and his recon-veyance to them should be held to be invalid, as to make it perfectly useless to inquire into that matter. That may become of interest to the parties at some future day, but could not possibly affect the issues involved in the present action, and therefore was correctly excluded upon the ground of its immateriality.”

Plaintiff contended that the title never rested in Legler for even a moment, as he conveyed back to the company, by way of mortgage, at the same time he received the legal title from it, under Moring v. Dickerson, 85 N. C., 466; Hinton v. Hicks, 156 N. C., 24, and therefore that the lien of the judgment, if it ever existed, did not attach to the land, and while this may be so, it is not necessary that we should decide as to it, and we do not, as we have held that defendant’s judgment was never a lien, because not docketed within the time fixed by statute. Whether the fact that the mortgage of Legler back to the company was registered before the deed of the company to him, would play any part in the solution of the matter, we also leave undetermined and as an open question.

We conclude that in no view of the case'should the judgment of the' court below be disturbed by us.

No error.