dissenting. I can not concur in the opinion of the Court, because, to my mind, it conflicts with the express provisions of the Constitution of the United States, and of the State of North Carolina. Art. XIV, sec. 1, of the amendments to the Federal Constitution, says: “Nor shall any State deprive any person of life, liberty or property without clue process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Sec. ,11 of the Declaration of Rights, in our State Constitution, provides that, “No person ought to be taken, imprisoned or dis-seized of his freehold, liberties or privileges, or outlawed or .exiled, or in any manner deprived of his life, liberty or prop*560erty, but by the law of the laud.” The phrase “law of the land” has been repeatedly interpreted to mean “due process of law.” The Supreme Court of the United. States, in Walker v. Sauvinet, 92 U. S., 90, says: “A State can not deprive a person of his property without due process of law.
•x- -x- -x- Thdg requirement of the Constitution is met if the trial is had according to the settled course of judicial proceedings. Due process of law is process due according to the law of the land. This process in the States is regulated by the law of the State.” It is too1 well settled to require any citation of authority that entire strangers are not bound by a judgment, and I presume it is equally settled that no judgment can be rendered without some form-of action or special proceeding, which in this State must always be commenced by summons or attachment. Code, secs. 161, 287. It is true that under the old practice infants were sometimes brought into court, where a suit was already pending, by the appointment of a guardian ad liiem,, without personal service.
Rut this has nothing to do with the case at bar, as there is no pretense that any guardian ad liiem was ever appointed for anyone. It is absolutely essential from principles of natural justice, as well as of the highest public policy, that the rights of infants should be protected. Adults can protect themselves. No one is compelled to buy land at an administrator’s sale, and in any event he can protect himself by a proper inspection of the record. A purchaser is a voluntary actor, while the infant, whose lands are taken without his consent or even his knowledge,is, at best,a passive sufferer. The power to sell land for assets is in derogation of the common law. Even now land descends to the heir, and the title which vests in him by operation of law remains in him until divested by due process of law. In this case it does not appear anywhere in the records of the court that the heirs-*561at-law of William L. Carson, or any of them, ever became, or were made, parties to the proceeding under wbicb tbe land v.as sold; nor is there even a recital to that effect. Even the general phrase “heirs-at-law of William L. Carson” appears only once in the title of the proceeding; and nowhere is the name of a single individual given as one of such heirs-at-law.
But it is said that, in the interest of innocent purchasers, the law must presume all things to have been rightly done-innocent children are entitled to as much protection as innocent purchasers, too many of whom calmly close their eyes in the happy assurance that “where ignorance is bliss, it is folly to be wise.”
Can the purchaser be said to have been an “innocent purchaser” in this case? John Carson, as administrator, deeded the land to Caleb Motz, on the 15th day of July, 1813, and on the following day Motz deeded back the same land to Johm Carson. I do not see how an administrator can ever be, im the legal sense of the term, an innocent purchaser at his owm sale. Tjet us examine the cases cited by the Court, bearing in mind that in the case at bar there is no proof or even recital that these plaintiffs were ever served with process, or became parties voluntarily or by the appointment of a guardian ad litem. The fact that the minute book in which the orders of sale are entered and in which the order appointing .a guardian ad litem should have been entered, if ever made, contains no allusion to any such order, strongly tends to prove that no such guardian was ever appointed.
In Harris v. Brown, 123 N. C., 419, cited by the Court, the minor heirs were not asking any relief. It was the purchaser who wTas seeking to' avoid the payment of the purchase money. In that case, this Court says: “In adversary proceedings, the parties are at arm’s length, and each one fights *562for victory. In sncb eases, if minors are parties without guardian, general or special, it is irregular, and on arriving at maturity they may reject or accept at their option. But in ex parte proceeding's they must be represented by a guardian or next friend.” In Avery ex parte, 64 N. C., 113, this Court held in express terms that “the heirs must be made defendants, and be represented by a duly constituted guardian ad litem
In Sledge v. Elliott, 116 N. C., 712, 716, it appeared that the Clerk of the Court had been appointed guardian ad litem, and the decree recited that service had been made upon all the parties.
In Adams v. Howard, 110 N. C., 15, it was held that, the land was authorized to be sold under an order made in a proceeding where the infants were parties represented by a guardian ad litem, and that the fact that the license to sell, as renewed in a proceeding where the heirs were not made parties, did not invalidate the previous valid order. It was also shown that the adult heirs were present at the sale and offered no objection.
In Hare v. Holleman, 94 N. C., 14, the following entry appears upon the record: “L. C. Oowper is appointed guardian ccd litem to the defendants, who accepts service of the petition and submits to a decree.” As in all the cases cited by the Court it was shown affirmatively that a guardian ad litem had been appointed wherever the interests of minor, heirs were affected, I do not see how they sustain the opinion of the Court. Personal service upon the infant might presume the appointment of a guardian ad litem, or the appointment of a guardian ad litem might presume service or take the place thereof; but surely one can not presume the other where neither is shown to exist. Every presumption must have some established'fact to rest upon. Let us see what some *563other cases hold as to the effect of a judgment against infants, ■who are neither parties, nor appeared by guardian:
In Larkins v. Bullard, 88 N. C., 35, (very much like the case at bar), the Court says: “The finding of the Court seems to go to the length of saying that, notwithstanding the order directing it to be done, the infant children of John Bul-lard were never in fact made parties to the action or any defense made for them; and if so, then, under the authority of White v. Albertson, 3 Dev., (14 N. C.), 241, the judgment against them was absolutely void ah initio, and it was proper to give them relief by directing the same to be vacated as to them.”
In White v. Albertson, 14 N. C., 242, Chief Justice Hmn-nnnsoN. speaking .for the Court, says: “The only objection which has the appearance of solidity, is, that the defendants, the heirs, were not made parties. If the fact be so, the judgment is void; for there can be no judgment but against one in Court. It is not according to the course of the Court to render judgment against one not brought into court.”.
In Jennings v. Stafford, 23 N. C., 404, Gastoet, J., speaking for the Court, says: “But if what is offered as a judgment have merely the semblance thereof; as if it be rendered-by a court having no jurisdiction of the subject matter, or against a person who luis not had notice to defend his right, or if it order what the court has not power to order, so that upon its face the law can pronounce it null, it is not a judgment.”
In Doyle v. Brown, 72 N. C., 393, Judge Reams, speaking for the Court, lays down the rule in his usual, clear, concise and forcible manner, as follows: “Where a defendant has never been served with process, nor appeared in person or by attorney, a judgment against him is not simply voidable, but void, and it may be so treated whenever and wherever offered *564without any direct proceedings to vacate it. And the reason is, that the want of service of process and the want of appearance are shown by the record itself wherever it is offered. Tt would be otherwise if the record showed service of process or appearance, when in fact there had been none. In such ease, the judgment would be apparently regular, and would be conclusive until by a direct proceeding for the purpose it would be vacated. A plaintiff needs not to be 'brought into court; he comes in. A judgment is of no force against a person as plaintiff, unless the record shows him to he plaintiff. If the record shows him to be plaintiff, when in fact he was not, then it stands as where the record shows one to be defendant when he is not. In both eases the record is conclusive until corrected by a direct proceeding for that purpose.”
This rule applies directly to the case at bar, as the record does not show that the infant heirs were either served with process or appeard by guardian. But it is said that only part of the record can he found. The answer is that what is found, the minute docket, does not tend to prove, even by recital, the fact of service or appearance. The mere fact that the minute docket contains both orders of sale and the decree confirming the sale, and yet makes no allusion to the appointment of a guardian ad litem, tends strongly to prove that no such guardian was ever appointed. My attention has never been called to any record where the professed parties were affirmatively shown by the record itself not to1 have been served with process or appeared. The absence of all proof, direct or by implication, of such fact is taken as at least tending to prove its want of existence, if not conclusive proof. Armstrong v. Harshaw, 12 N. C., 187; Stallings v. Gulley, 48 N. C., 344; Condry v. Cheshire, 88 N. C., 375. These well-considered cases also sustain the rule that where one has *565never become a party either by service of process or appearance, any judgment against him is absolutely void. The extent to which they have been cited and approved may be seen from Womack’s Digest.
For the reasons above stated, I am clearly of the opinion that the judgment of the court below should be affirmed. I fully share in the reluctance of the Court to disturb ancient titles after so long a lapse of time, but I am equally reluctant to deprive anyone of his property without due process of law.