Chadbourn v. . Johnston , 119 N.C. 282 ( 1896 )

This is a motion to set aside a judgment of foreclosure, sale and confirmation thereunder, and from the facts found by the court it appears that on 6 December, 1886, John Watkins and his wife, Rebecca A. Watkins, executed a mortgage on the land mentioned in the complaint, to the defendant, E. M. Johnston, to secure a debt due by note of $3,704, payable twelve months from date. That on 26 December, 1886, said Johnston assigned said note to the plaintiff, Chadbourn. That after the execution of this note and mortgage, and before the commencement of this action, the said John Watkins died, leaving a last will and testament, in which he devised this land to his wife (287) for life, and the remainder in fee to the defendant, E. M. Johnston, and that since the death of said Watkins the defendant, E. M. Johnston, has sold and conveyed his estate in said land to W. J. Johnston. That this action was brought against E. M. Johnston, W. J. Johnston, and R. A. Watkins, the widow and devisee for life of said John. That the summons was served on the defendant E. M. Johnston, but there was no service on the other two defendants. That at the return of the summons the defendant, E. M. Johnston, employed John D. Kerr, Marsden Bellamy and Herbert McClammy, practicing attorneys at that court, who entered a general appearance for the defendants, believing they were employed by all, and filed an answer for the defendant E. M. Johnston, and obtained leave to file for the others, but no other answer was filed. And at March Term, 1894, a judgment was entered against E. M. Johnston, who was one of the executors of the mortgagor, John Watkins, for the amount of the debt secured by the mortgage, a commissioner appointed and a sale of the land ordered. This sale was made and reported to the court by the commissioner and confirmed and judgment of foreclosure entered. And this is the judgment and proceedings thereon that are asked to be set aside under this motion.

The wife of a mortgagor who joins with her husband in making a mortgage is a necessary party in an action of foreclosure. Nimrock v. Scanlin,87 N.C. 119. And if the wife is a necessary party, it would seem that the widow who joined in making the mortgage with her husband would be.

The heirs-at-law of the mortgagor are necessary parties in an action to foreclose. Fraser v. Bean, 96 N.C. 327. And it would seem that if heirs are necessary parties, a devisee and those claiming under (288) him would be. We are, therefore, of the opinion that Rebecca A. Watkins, both as a widow and as devisee, was a necessary party, and that W. J. Johnston, assignee of E. M. Johnston, was a proper if not a necessary party.

But it seems that they were both legal parties to this action. They were made defendants in the summons issued in the case, which was returned executed, though in truth and in fact it was not executed on Rebecca A. Watkins and W. J. Johnston.

This, prima facie, gave the court jurisdiction and authorized it to proceed to judgment. But this presumption might be rebutted by showing that in fact it had not been served. And, if nothing more had occurred, upon the court's finding this fact it would have been the duty of the Court to set aside the judgment.

But the matter did not end here. Three practicing attorneys made a general appearance for the defendants, which put the defendants Rebecca and W. J. Johnston in court, and one of these attorneys (Marsden Bellamy) is found to be "amply solvent." And it has been held by this Court that where this is the case the Court will not set aside the judgment otherwise regular. University v. Lassiter, 83 N.C. 38. For this reason the court erred in setting aside the judgment of sale and the order confirming the same and foreclosing the mortgage.

ERROR.

Cited: Ice Co. v. R. R., 125 N.C. 23; Hatcher v. Faison, 142 N.C. 367;Schiele v. Ins. Co., 171 N.C. 433; Comrs. v. Spencer, 174 N.C. 37.

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