Rawls v. . Mayo

79 S.E. 298, 163 N.C. 177, 1913 N.C. LEXIS 146

• Court: Supreme Court of North Carolina
• Decided: September 17, 1913
• Status: Published

Opinion

Allek, J.

It is admitted that tbe plaintiffs cannot recover if. tbe purchase money in the bands of J. L. Mayo is not personalty, and it appears in tbe record that a'judgment has been rendered in an action, to which tbe plaintiffs were parties, adjudging it to be real estate, from which there has been no appeal.

If this adjudication was wrong, it is because it was based on the erroneous application of legal principles, and the remedy to correct the error was by appeal. Stafford v. Gallops, 123 N. C., 21; McLeod v. Graham, 132 N. C., 475.

Nor can the fact that the plaintiffs were'infants at the time of the adjudication, and that the judgment was by consent, benefit the plaintiff, if it be conceded that the part adjudging the purchase money to be real estate was by consent, which is not beyond dispute, because if treated as the contract of infants, which is the most favorable view for the plaintiffs, it would be voidable and not void (Millsaps v. Estes, 137 N. C., 535), and cannot be attacked collaterally. Earp v. Minton, 138 N. C., 204. The plaintiffs have not sought to impeach the judgment by motion or action, but treat it as void, which, as we have seen, is not a correct view to take of it, and we must hold that it precludes a recovery.

Affirmed.