Ferrell v. . Broadway , 127 N.C. 404 ( 1900 )

MONTGOMERY and DOUGLAS, JJ., dissenting. This is a petition to rehear this case, which is reported in126 N.C. 258. The proceeding is a motion in the cause to set aside a judgment rendered at August Term, 1887, of LENOIR. The Judge found as facts: That in 1883 an action was bought by W. B. Ferrell and others (among whom are all the movers herein) to have E. S. Broadway, who had in 1880 bought a tract of land at foreclosure sale, declared a trustee for the plaintiffs in that action. The movers herein were parties-plaintiff therein, and, being minors, were represented by their next friend, W. B. Ferrell; and their counsel were George V. Strong and D. E. Perry, both of whom are since dead. That at August Term, 1887, the defendant having filed answer, judgment was entered as follows: "The following jurors, having been chosen, impaneled, and sworn to try the issues arising upon the pleadings, for their verdict say that they find all the issues in favor of defendant; and it is thereupon ordered and adjudged that the plaintiffs take nothing," etc. That W. B. Ferrell, the next friend of the movers herein, died during the pendency of the action, but his death was not suggested, and no other next friend was appointed (405) for the infant plaintiffs. That nothing indicated the death of the next friend during the pendency of the action, and the proceedings, upon their face, are entirely regular. The Court further found that E. S. Broadway, in 1887, mortgaged the realty in question to J. W. Grainger, and in 1890 conveyed said land to Grainger for full value, and that said Grainger had no notice of any irregularity in the proceeding, and no notice, either, that W. B. Ferrell died pending said litigation, or that no next friend was appointed. The judge further found that no notice of the motion to set aside said judgment of 1887 for irregularity was served on Grainger till November, 1899, and that he was a "purchaser for full value, in good faith, and without notice." Upon these findings of fact, his Honor properly refused to set the judgment aside. Williams v. Hartman,92 N.C. 236; Fowler v. Poor, 93 N.C. 470. The proceeding to have E. S. Broadway declared a trustee for the movers was terminated in 1887. The proceedings were regular on their face. The only irregularity complained of is that the next friend of the infant plaintiffs died pending the action. But they were represented by able and honorable counsel, and the presumption of regularity in judicial proceedings is that in fact they had another next friend appointed, and that the order failed, by some accident, to be recorded (as is extremely probable, from the high character of the counsel), and has since been lost. At any rate, the proceedings were regular on their face, and the Judge finds explicitly that J. W. Grainger bought without notice of the irregularity alleged, for full value, and in good faith. The plaintiffs slept on their rights, if any they had, for 12 years, before taking this proceeding. On the former hearing the Court was impressed by an (406) affidavit which averred that the judgment at August Term, 1887, was entered by consent. What effect, if any, that should have on a subsequent purchaser for full value and without notice, we need not discuss. (Tyson v. Belcher, 102 N.C. 112, and numerous cases there cited); for, upon examining the record, we find the judgment does not so state, nor is that assertion found to be true by his Honor, who set out the recital of the verdict by jury, on issues raised, as the truth of the matter. It was not necessary that the Judge should, in his findings, expressly negative every averment in the affidavits that he does not find to be true, even when there may be no affidavit expressly denying a particular allegation in an affidavit. Besides, that affidavit was filed in another cause, Arthur v. Broadway, post 407; and involving the same tract of land (Branch v. R. R., 88 N.C. 573; Perry v. Adams, 96 N.C. 347). A party aggrieved by a judgment must move to set it aside before the right of innocent third parties have intervened. Le Duc v. Slocomb,124 N.C. 351; Vick v. Pope, 81 N.C. 22. His Honor having found that Jesse W. Grainger bought for full value in good faith, and without notice of any irregularity, it could serve no purpose to remand the case to find whether the judgment was by consent or not, which, if it be an irregularity, is not alleged in the motion, and whose existence, indeed, would not impair the title of a bona fide purchaser for value and without notice, any more than that which is alleged, and which would not excuse to any greater extent the negligence of movers for 12 years to take any steps to set aside the judgment. Petition allowed, and the judgment below affirmed.