Horton v. Davis , 12 N.C. App. 592 ( 1971 )

MOEEIS, Judge.

This is, of course, an action in ejectment. Paul Davis, never having been served, is not a party thereto. Plaintiff and Guil-ford County strenuously contend that valid service was had upon Paul Davis in the tax foreclosure suit. Defendants just as strenuously contend that the service was not valid and the judgment, therefore, void. In our view of the case, this question is not before us.

In our opinion this is obviously an attempted collateral attack on a voidable judgment. The record in the tax foreclosure suit is, on its face, in order, and this precludes a collateral attack on the judgment. In Jordan v. McKenzie, 199 N.C. 750, 752, 155 S.E. 868 (1930), Justice Connor said:

“Where it appears on the record, as in the instant case, that the summons in an action was duly served, and the defendant alleges that in truth and in fact the summons was not served, as appears by the return thereon, and on this ground the defendant prays that a judgment by default be set aside and vacated, his remedy is by a motion in the cause, and not by an independent action; it is otherwise, where it appears on the record that no summons was ever served on the defendant. In the latter case the judgment is subject to collateral attack, whereas in the former case the attack must be direct, and made by motion in the action in which judgment was rendered.”

The same principle was reiterated in Davis v. Brigman, 204 N.C. 680, 169 S.E. 421 (1933). There the plaintiffs alleged that in 1931 Madison County instituted an action against plaintiffs to foreclose a tax certificate issued to the county pursuant to a sale of the land in controversy. No answer was filed and an order was entered appointing a commissioner to sell the land. Defendant in the action is the assignee of the high bidder at the sale. Afterwards a final decree was entered, and the commissioners, as directed by the court, executed and delivered a fee simple deed to the assignee. The complaint further alleged that the summons in the foreclosure proceedings was purportedly issued by the clerk and served on the plaintiffs but that in fact it was never served and the return of the officer was incorrect. Defendant moved to dismiss for that plaintiffs’ only remedy was by motion in the cause. Justice Adams, writing for a unanimous Court, said:

“This action cannot be treated as a motion in the foreclosure proceedings for the reason that all the parties to the foreclosure are not parties to the present action. The remaining question is whether the relief sought by the plaintiffs can be administered in an independent action. The plaintiffs claim that the relief sought is the removal of a cloud on the title of (sic) their land; but in order to remove the alleged cloud it is necessary to vacate the judgment rendered when the tax certificate was foreclosed. This Court has repeatedly held that when it appears from the officer’s return that a summons has been served as required by law, when in fact it has not been served, the remedy is a motion in the cause to set aside the judgment and not an independent action. In such event the judgment cannot be collaterally attacked; relief must be sought in a direct proceeding to have the judgment set aside. (Citations omitted.)”

Appellees rely on Galer v. Auburn-Asheville Co., 204 N.C. 683, 169 S.E. 642 (1933), which they say is exactly in point, and is authority for their position that the judgment before us is void because of defective service. It is true that the circumstances surrounding the service of process are strikingly similar. However, there the facts were these: The land in litigation was owned by Katherine Williamson prior to September 1928. She conveyed it to Alice Morris free from encumbrance except 1928 taxes. Alice Morris conveyed it to plaintiff free from encumbrance and agreed to pay the 1928 taxes. The taxes were not paid. In 1930 Buncombe County instituted suit against Katherine Williamson for the 1928 taxes. Summons was returned and stamped by the sheriff “Due search made, defendant not to be found in my county.” Thereafter, upon proper affidavit and order, notice of service by publication was published in a newspaper for the statutory time. Judgment was entered against Katherine Williamson and the property sold. Buncombe County bid the property in and assigned its bid to defendant, and deed was duly delivered to him and recorded. Plaintiff, in 1932, discovered that defendant had a deed for the property, and tendered the amount of taxes and costs to defendant, which tender was refused. Plaintiff then caused notice to be given to defendant to show cause why the judgment entered in the tax foreclosure action should not be set aside. In that proceeding it was made to appear that Katherine Williamson was, at the time of the issuance of the summons and had been continuously since that time, present in the City of Asheville and in Buncombe County. The judgment was set aside. Plaintiff then instituted action to set aside and ccmcel the deed made to defendant which had been recorded contending that the recorded deed constituted a cloud on her title. The trial court’s judgment ordered cancellation of the deed, and it was from that judgment that defendant appealed. It is that appeal which is reported in 204 N.C. at 683. In affirming the trial court, Justice Clarkson noted that plaintiff by moving in the cause in the tax foreclosure action to have the judgment set aside and then bringing action to remove cloud had followed the proper procedure citing Davis v. Brig-man, supra.

For the reasons set out herein the judgment of the trial tribunal is reversed and a new trial is ordered.

New trial.

Judges Brock and Hedrick concur.