NARRON
v.
MUSGRAVE et al.
No. 236.
Supreme Court of North Carolina.
November 5, 1952.*9 A. M. Noble and Lyon & Lyon, Smithfield, for appellant.
Albert A. Corbett and Shepard & Wood, Smithfield, for appellees.
DENNY, Justice.
The ruling of the court below at the February Term, 1950, insofar as it held that Richard Musgrave, Jr., cannot maintain an action for the possession of the land involved herein until after the expiration of the life estate of his father, was correct. Joyner v. Futrell, 136 N.C. 301, 48 S.E. 649; Harris v. Bennett, 160 N.C. 339, 76 S.E. 217; Blount v. Johnson, 165 N.C. 25, 80 S.E. 882; Loven v. Roper, 178 N.C. 581, 101 S.E. 263; Caskey v. West, 210 N.C. 240, 186 S.E. 324; Stephens v. Clark, 211 N.C. 84, 189 S.E. 191. This being true, the statute of limitations, with respect to such action, will not begin to run against him as remainderman until after the expiration of the life estate. Joyner v. Futrell, supra; Harris v. Bennett, supra; Caskey v. West, supra. This does not mean, however, that such remainderman may not move to vacate a void or voidable judgment until after the expiration of the life estate. This he may do at any time, if the action is taken seasonably and laches cannot be imputed to him. Harris v. Bennett, supra; Loven v. Roper, supra.
As a general rule, the court will not vacate an irregular judgment against an infant as a matter of course. Neither will it do so, "when it appears from the record, or otherwise, that the infant has suffered no substantial wrong, and the rights of innocent third parties, who have purchased for value and without notice, have intervened and will be prejudiced." Harris v. Bennett, supra [160 N.C. 339, 76 S.E. 219].
The petitioner takes the position that the judgment entered below is void and that as a matter of course any sale made pursuant thereto is a nullity. In our opinion, the record proper discloses, at most, irregularities which may be construed to render the judgment voidable only. On the other hand, if the petitioner was not served with summons and a copy of the original petition in this cause, and the guardian ad litem interposed no real defense in behalf of his ward, and the court entered judgment contrary to the provisions of C.S. 451, G.S. § 1-65, then it was without jurisdiction to do so. Moore v. Gidney, 75 N.C. 34; Welch v. Welch, 194 N.C. 633, 140 S.E. 436; Graham v. Floyd, 214 N.C. 77, 197 S.E. 873; Simms v. Sampson, 221 N.C. 379, 20 S.E.2d 554. Furthermore, if J. D. Bailey was the general guardian of Richard Musgrave, Jr., as indicated in the summons, he was the only party who could defend in behalf of his ward. G.S. § 1-65.
If it should be determined that the original judgment was valid or a voidable one, it would then be the duty of the court to determine, (1) whether the sale of the property was properly and legally conducted; (2) if not, whether the petitioner has suffered any substantial wrong as the result thereof; and (3) whether Bettie Bass was an innocent purchaser for value.
The appellees concede that Richard Musgrave, Jr., was entitled, as a matter of law, to have a homestead allotted to him as provided *10 by the Constitution of North Carolina, Article X, Section 3; Spence v. Goodwin, 128 N.C. 273, 38 S.E. 859, 860.
This Court held, in the last-cited case, that, "The duty of a guardian ad litem, and in fact the object of his appointment, is to protect the interest of his wards; and he has no power to waive any substantial right, especially when such waiver is entirely without consideration. It is true that his failure to assert their rights may in certain cases estop them from doing so, but only where such assertion would interfere with the rights of third parties subsequently acquired in good faith. * * * The law does not favor the implied waiver of homestead exemptions, especially by infant defendants."
It is contended, however, that since the homestead was not allotted, and the petitioner is now of age, he is no longer entitled to such right. This Court so held in Dickens v. Long, 112 N.C. 311, 17 S.E. 150.
It is further argued by the appellees that the petitioner had no meritorious defense to the original proceeding and is, therefore, not entitled to have the judgment and sale set aside regardless of any irregularity therein. They are relying upon Harris v. Bennett, supra, and similar cases. In the above case it was determined as a fact that the estate was hopelessly insolvent and that the purchaser acted in good faith and paid full value for the property. That is not conceded here. According to the original petition to sell the real estate to create assets to pay debts, the administrator alleged that the six acre tract of land belonging to the estate of Peoria Watkins Musgrave was worth $600; and that the total indebtedness against her estate was about $125. Consequently, if it should be determined that the original judgment was valid or voidable, and it should be further determined that Bettie Bass was not an innocent purchaser, without notice, and for value, the petitioner would have sufficient equity in the property to warrant the court to set aside the sale and to direct that the assets of the estate be administered according to law.
According to the petition filed by Richard Musgrave, Jr., the administrator of his mother's estate filed his final account on 22 July, 1932, more than two years after the purported sale on 19 June, 1930, which account was duly accepted and approved by the Clerk of the Superior Court of Johnston County on 26 August, 1932; that the administrator stated in his final account that the sale of the land now in controversy was never consummated. Moreover, it is alleged that the purported sale of 19 June, 1930, at which Bettie Bass is purported to have been the last and highest bidder in the sum of $160, was never authorized or reported; and that request for confirmation of such sale was not made until many months after the estate was closed although such sale, according to the decree of confirmation, took place more than two years prior thereto. In fact, no request for confirmation of the purported sale on 19 June, 1930, was made until 5 January, 1933, and the commissioner did not execute his deed pursuant to such confirmation until 3 January, 1934. Furthermore, it is contended by the petitioner that Bettie Bass never paid the purported consideration for the land. If this is true, she was not an innocent purchaser, without notice, and for value. And there is nothing in the record to indicate that the purchase price was paid into court or to the personal representative of the estate.
Even so, a motion in the cause to set aside a judgment on the ground that it is void or voidable, may not be converted into an action to recover for trespass and waste. Once the remainderman establishes his title as such, he may institute an action for trespass and waste with or without joining the life tenant. Loven v. Roper, supra. But, so long as the original judgment in this proceeding, and the orders made pursuant thereto, remain in full force and effect, the petitioner cannot maintain an action for trespass and waste.
The ruling sustaining the demurrer ore tenus at the February Term, 1950, of the Superior Court of Johnston County, unquestionably was not intended to dismiss the petition except insofar as it alleged the *11 right of the petitioner to the present possession of the premises. The retention of the petition "insofar as it may pertain to alleged acts of trespass or waste" necessarily implies a retention of all the allegations in the petition which were necessary to establish the petitioner's title as remainderman. Certainly the court did not hold that the petitioner had a cause of action for trespass and waste and at the same time sustain a demurrer to those allegations in his petition which were necessary to establish title in the petitioner as remainderman. However, these allegations having been made primarily in support of the petitioner's present right to possession and to recover for trespass and waste, this proceeding will not be held as prejudicial to the petitioner's right to move to vacate the original judgment and to set aside the sale.
Nevertheless, the ruling of the court below, in sustaining the demurrer with respect to the petitioner's right to recover for trespass and waste in this proceeding, for the reasons herein stated, will be upheld.
Affirmed.