Fowler v. . Poor , 93 N.C. 466 ( 1885 )

The purpose of this action is to have an alleged fraudulent judgment, and sale of land under it, declared inoperative and void. The action is proper one for that purpose. The proceeding in which the judgment complaint of was given, was long ago completely ended, so that a motion or petition therein would not be appropriate. It is only when the action is not ended that steps may be properly taken in it to have a fraudulent order or judgment therein set aside.

It would be otherwise, however, if the purpose were to set the judgment and sale aside for irregularity. In such case, a motion in the cause, although the action be ended, is the proper remedy. In this connection we may add, that, while it appears that there was some irregularity in the proceedings, judgment and sale of the land in question, it was clearly not such as rendered them void, and this irregularity was cured by subsequent statutes. The Code, sec. 387; Johnson v. Futrell,86 N.C. 122; Howerton v. Sexton, 90 N.C. 581; Williamson v.Hartman, 92 N.C. 236. (471)

It is not alleged in the complaint, nor does it appear in any way in the record, that it was unnecessary to sell the land in question to make assets to pay debts; indeed, it seems to be conceded that the proceeding for that purpose was in itself unobjectionable. Nor does it appear from anything admitted in the pleadings or the findings of the jury, that the judgment, was obtained by fraud, or that the sale of the land was fraudulent, and fraud is expressly negatived by the finding of the jury as to the deed to the defendant W. B. Duckworth, and it is likewise found as a fact, that the defendant, Joseph Duckworth, did not have "notice of any fraud in the deed to W. B. Duckworth," from whom he purchased. So that he was, as appears by this affirmative finding, an innocent purchaser without notice of fraud.

As the case appears to us in the record, it is very clear that there is error in the judgment of the court below. In the proceedings complained of, the court had jurisdiction of the parties thereto, the subject matter, and authority to direct a sale of the land. The order of sale was very summary and indefinite as to its terms, but a sale and report thereof to the court was made, and there was a judgment confirming the same, and directing an application of the proceeds, and it was also ordered that title be made to the purchaser. The allegations of fraud were not sustained by anything that appears in the record; on the contrary, in material respects, the jury expressly found that there was no fraud. It is not simply necessary to allege fraud in the judgment, but it must be made to appear to the court by proper proofs.

Even if it appeared that the judgment and sale were fraudulent as to the defendants Poor and W. B. Duckworth, and they might be answerable to the plaintiffs in that respect, this could not affect the defendant Joseph Duckworth, because he bought the land without notice of such fraud, and must, therefore, be protected. He was only bound to see that the court had jurisdiction of the parties and the subject matter of the proceedings, and that the judgment authorized the sale. All (472) this appeared on record, and must be allowed to protect him, in the absence of fraud, or notice thereof, on his part. Morris v.Gentry, 89 N.C. 248; England v. Garner, 90 N.C. 197, and the authorities there cited.

The purchase of the land, worth $250.00, by the defendant W. B. Duckworth, for himself, at the grossly inadequate price of eleven dollars, he being counsel of the infant defendants (the present plaintiffs), as the time, was, in a professional point of view, wholly indefensible, but it is not within the scope of this action, certainly in its present shape, to determine his civil liability on that account to the plaintiffs. Such purchase was not necessarily fraudulent, although it might be evidence of fraud, or a fraudulent intent.

We think it proper to say in this connection, that if the facts are as they appear to be, he ought to hasten to make reparation to the plaintiffs, and not wait for an action to be brought against him. It is a grave breach of professional propriety for an attorney to take unconscionable advantage of his client, more especially, when they are infants and of tender years.

There is error, for which the judgment must be reversed.

Error. Reversed.

Cited: Burgess v. Kirby, 94 N.C. 579; Morris v. White, 96 N.C. 93;Syme v. Trice, ibid., 245; Ward v. Lowndes, ibid., 380; Cates v. Pickett,97 N.C. 26; Rollins v. Love, ibid., 215; Grimes v. Taft, 98 N.C. 198;McGlawhorn v. Worthington, ibid., 202; Brickhouse v. Sutton, 99 N.C. 106;Branch v. Griffin, ibid., 182; Knott v. Taylor, ibid. 515; Spivey v.Harrell, 101 N.C. 50; Tyson v. Belcher, 102 N.C. 115; Smith v. Fort,105 N.C. 453; McLaurin v. McLaurin, 106 N.C. 334; Carter v. Rountree,109 N.C. 30; Dickens v. Long, ibid., 170; S. c., 112 N.C. 315; Deaverv. Jones, 114 N.C. 651; Smith v. Gray, 116 N.C. 314; Sledge v. Elliott,ibid., 717; Ferrell v. Broadway, 127 N.C. 405; Carraway v. Lassiter,139 N.C. 155; Houser v. Bonsal, 149 N.C. 521; Harris v. Bennett,160 N.C. 344; Phillips v. Lumber Co., 151 N.C. Brown v. Sheets,197 N.C. 273; Duncan v. Gulley, 199 N.C. 566; Cheek v. Squires,200 N.C. 670; Hood, Comer., v. Stewart, 209 N.C. 431.