Morris v. . Gentry

89 N.C. 248

• Court: Supreme Court of North Carolina
• Decided: October 5, 1883
• Status: Published

Opinion

MereimoN, J.

It is an essential and fundamental principle of the law, that all properly constituted judicial proceedings must be upheld as regular, warranted by the facts and the law applicable to them, valid and effectual, until the contrary shall be shown and established by some competent proceeding for that purpose. Hence, v'herever it appears upon the face of the record in any action or other judicial proceeding, that the court had jurisdiction of the parties litigant and the subject matter in litigation, the law presumes that the court got jurisdiction in a regular or proper way, and that its orders, decrees and judgments are valid and effectual, however irregular or fraudulent, until the irregularity and invalidity, because of fraud or other sufficient cause, shall be duly established, and such proceedings, orders, decrees and judgments shall be declared invalid by proper decree. To allow the records of courts of justice, their judgments and decrees, to be questioned and held to be inoperative in the same tribunal that made them, or in other tribunals, would be subversive of judicial authority and destructive of public and private justice. The law is too true to itself, and too thorough in its life and vigor, to allow of such practical absurdity; it requires that its courts shall be careful to see that their judgments settle and establish rights, and when once made must prevail everywhere. The courts making them will be slow to disturb them, and never, except for adequate cause shown in a direct proceeding for the purpose.

It is likewise well settled that courts will protect third persons who honestly do acts and acquire rights under their judgments, although such judgments may afterwards be reversed. All that such persons need be careful to see, is, that the court had jurisdiction of the parties and the subject matter, and that the order or judgment, upon the faitli of which such acts were done or rights acquired, authorized the same to be done or acquired. As, where land was sold by an order of court, it is only necessary that the purchaser should see that the court had jurisdiction'of the parties and had authority to order the sale, and that the order did authorize it. This implies, howevér, that the third person purchased honestly on his part, and without knowledge of fraud on the part of others in procuring or bringing about the sale. He will not be allowed to take advantage of his own fraudulent conduct or that of others, of which he had knowledge at the time of the purchase. University v. Lassiter, 83 N. C., 38; Ivey v. McKinnon, 84 N. C., 651; Sutton v. Schonwald, 86 N. C., 198; Gilbert v. James, 86 N. C., 244.

.Now, the late court of equity and the superior court succeeding to its jurisdiction in Stokes county had authority upon the ex-parte petition of the plaintiffs, while they were infants, suing by their mother as next friend, to order and make a valid sale of their land mentioned, for partition, and to pass the title thereto through its commissioner appointed for the purpose. The Code §1602; Ex-parte Dodd, Phil. Eq., 97; Rowland v. Thompson, 73 N. C., 504; George v. High, 85 N. C., 113; Ivey v. McKinnon; Sutton v. Schonwald, supra.

According to the allegations in the complaint, the record upon its face shows, that an ex-parte petition was filed by the plaintiffs, then infants, suing by their mother as a next friend, suggesting that the land in question ought to be sold, that an order of sale v’as made and confirmed by the court, the purchase money v'as paid, and by the like order title was made to the purchaser. Irregularities, important ones, in the proceeding to sell the land are alleged, but it was sufficient for the purchaser (taking it that he purchased honestly and fairly and without the knowledge of fraud on the part of any one in procuring the sale to be made, and the contrary is not suggested or alleged) to see that the court had jurisdiction of the parties and of the subject matter, and that the order authorized the sale to be made. All this appeared to him.

It is said, however, that the plaintiffs and their mother, represented as being their next friend, in fact, had no knowledge of the filing of the petition or of the sale of the land until recently, long after it was made, and that they never authorized or sanctioned the same.

But the presumption of law is that they had knowledge and notice of the whole proceeding, and it must be taken that they had; that they by themselves, or by an attorney of the court, filed the petition with the practical knowledge and sanction of the court, and the whole was done at their instance, by’the court, it having proper regard for the interests of the infants, and they must be bound by the decrees until, by proper action, the whole of the proceeding shall, because of material irregularities, be set aside; or, because of fraud on the part of some one in procuring the sale to be made, declared and decreed to be void; and even then, the sale to the purchaser will remain good and effectual, unless the plaintiffs can allege and prove that he fraudulently procured or participated in the fraudulent procurement of the sale to be made, or had knowledge at the time of the sale of such fraud on the part of others, or such information as put him on inquiry.

It is not alleged that the purchaser, William IT. Gentry, purchased otherwise than honestly, nor is there any suggestion in the complaint unfavorable to him, except that he bought the land at greatly less than its reasonable value; but it is alleged, that his son, the defendant Sterling Gentry,.purchased from the assiguee in bankruptcy “ with full knowledge of the manner in which his father became the purchaser.” This allegation is vague and indefinite. So far as appears from the complaint the purchase by the father was bona fide. If the purchase of the father was tainted -with fraud and the son was cognizant of this, or participated in the fraud, then the plaintiffs ought to have so alleged. The allegation that the defendant Joyce had knowledge of “the nature of said Sterling Gentry’s title” at the time lie purchased, is so indefinite as that it has neither force nor point.

The complaint is vague, uncertain and indefinite, and it is difficult to determine whether the action was brought to recover the possession of the land, treating the sale in equity as void, or whether the object is to impeach the decree therein for fraud. But be this as it may, in the absence of a denial of what is alleged, we have a painful apprehension that a flagrant fraud was practiced by some person or persons upon the plaintiffs, while they were infants, and, in an important sense, in contemplation of law, under the care and protection of the court. As it now appears to us,’to say the least, the court v'as not circumspect; it allowed itself to be imposed upon by designing and dishonest persons in a respect and about a matter wherein it ought to have given special and careful attention.

This is another sad illustration of the loose and careless practice that too generally prevails in the courts, of allowing guardians ad litem and next friends of infants to be appointed almost as of course, upon a suggestion, and frequently without that, who, however careless and faithless as to the trust reposed in them, are by implication recognized, and must in the nature of judicial proceedings be treated as recognized by the court.

It is the duty of courts to have special regard for infants, their rights and interest, when they come within their cognizance. The law makes this so, for the good reason, they cannot adequately take care of themselves. It is a serious mistake to suppose that a next friend or a guardian ad litem should be appointed upon simple suggestion; this should be done upon proper application in writing, and due consideration by the court. The court should know who is appointed, and that such person is capable and trustworthy. The appointment of guardians ad litem and their duties are prescribed by statute. The Code, §181. But while the statute (§180) allows infants to sue by their next friends, the manner of the appointment of them and their duties are left as at the common law. nAs to their appointment, Tidd in his work on Practice says, at page 100: “To constitute aymo- chein amy or guardian, the person intended, who is usually some near relation, should come with the infant before a judge at his chambers, or else a petition should be presented to the judge on behalf of the infant, stating the nature of the action, and, if for the defendant, that he is advised and believes he has a good defence thereto, and praying in respect of his infancy that the person intended may be assigned him as his prochein amy, of guardian, to prosecute or defend the action. This petition should be accompanied by an agreement signifying the assent of the intended prochein amy, or guardian, and an affidavit ■ made by some third person that the petition and agreement were duly signed. On being applied to in either of these ways, the judge will grant his fiat, upon which a rule or order should be drawn up and filed with the clerk of the rules in the Sing’s Bench, for the admission of the prochein amy, or guardian,” &c. 2 Arch. Pr., 154; 2 Sell. Pr., 65, Appendix (Forms) 504; Story’s Eq. Ph, §§57, 58, and note.

It would have been better if such practice, or the substance of it, had prevailed in this state from the beginning, but a loose practice has been recognized and pursued by the courts, and we cannot now disturb rights that have been acquired under it. If the strict methods in this respect of the English courts had prevailed, it could scarcely be possible that calamitous cases, like this seems to be, and many similar ones that have come before this court, and many that have not, could happen. This evil, in the future, may be easily and thoroughly corrected.

We think the court erred in overruling the demurrer. If the action was brought to recover possession of the land, the complaint states facts showing the title thereto in the defendants; if it may be treated as an action to impeach the decree directing a sale of the laud for partition, there is no sufficient allegation that the defendants were in any way connected with or had knowledge of the procurement of the sale so as to affect the validity of their title. So the complaint, as it stands, “does not state facts sufficient to constitute a cause1 of action,” and the demurrer ought to have been sustained. There is error.

But the court, in overruling the demurrer, granted leave to* the defendants to answer over, and to the plaintiffs to amend the complaint.

Ordinarily, when this court sustains the demurrer, the judgment here is final; but where, as in this case, the court gave the plaintiffs leave to amend the complaint, and it seems they did not have opportunity to amend before the appeal was taken, this court will remand the case, to the end they may amend if they shall be so advised. Otherwise, the superior court will sustain the demurrer and dismiss the action. Generally, when the court thinks the case a proper one for allowing amendments, this should be done before deciding to sustain or overrule the demurrer; if the amendment should be made, it might cut off the ground of' demurrer and save delay and expense. Foy v. Haughton, 83 N. C., 467.

■ The case will be remanded with instructions to reverse so much of the judgment as overrules the demurrer, and to enter judgment sustaining the same, and dismissing the action, unless the-plaintiffs avail themselves of the leave granted to amend the complaint, in which case the action will proceed according to law. It is so ordered. Let this be certified.

Error. Reversed and remanded.