Quevedo v. Deans

68 S.E.2d 275 (1951)

234 N.C. 618

QUEVEDO et al. v. DEANS et al.

No. 674.

Supreme Court of North Carolina.

December 12, 1951.

*277 Johnson & Johnson, Lumberton, for plaintiff appellees.

George T. Deans, defendant, in propria persona, and Varser, McIntyre & Henry, Lumberton, for defendants Tolar.

BARNHILL, Justice.

Did the court err (1) in making additional findings of fact, and (2) in holding that the plaintiffs are the owners of the land in controversy? These are the questions the defendants pose for decision. Each must be answered in the negative.

As the cause came on for hearing before the trial judge on exceptions to the report of the referee, he was not bound by the findings of fact or conclusions of law made by the referee. Instead he, in the exercise of his supervisory power, was vested with full authority to amend, modify, set aside, confirm, or disaffirm the report. This included the authority to make such additional findings of fact as he deemed advisable. Keith v. Silvia, 233 N.C. 328, 64 S.E.2d 178.

It is now settled law in this jurisdiction that in a tax foreclosure action the owners of the equity of redemption must be made parties to the action and served with process. Board of Com'rs of Roxboro v. Bumpass, 233 N.C. 190, 33 S.E.2d 144; Eason v. Spence, 232 N.C. 579, 61 S.E.2d 255, 717; City of Wilmington v. Merrick, 231 N.C. 297, 56 S.E.2d 643.

The failure to make the owners parties to the action and have them served with process is not a mere irregularity or defect of procedure. It is the omission of an essential requirement of due process which renders the whole proceedings, as to those not parties, void and of no effect. Board of Com'rs of Roxboro v. Bumpass, supra; Eason v. Spence, supra.

That the validity of the judgment in the foreclosure proceeding was subject *278 to challenge in this action is well settled by the decisions of this Court. Powell v. Turpin, 224 N.C. 67, 29 S.E.2d 26; Hill v. Stansbury, 224 N.C. 356, 30 S.E.2d 150; City of Monroe v. Niven, 221 N.C. 362, 20 S.E.2d 311.

While it is true that one who buys at a judicial sale is required only to look to the record to see if the court had jurisdiction of the parties and the subject matter of the proceeding and that the judgment authorized the sale, Graham v. Floyd, 214 N.C. 77, 197 S.E. 873, this rule, even if applicable here, can bring little comfort to the defendants. The only persons named as parties defendant were dead. The summons as to them was returned unserved. They, before their death, were residents of the county, and it does not appear that the required affidavit for service by publication was filed. Nor does the judgment recite service. These are defects disclosing the want of jurisdiction, readily discoverable by any one who might search the record.

The contention that the original record is not now available does not affect this conclusion. Furthermore, in this connection, it was stated here, and not denied, that the record of the hearing before the referee discloses that the judgment roll in the foreclosure proceeding was traced to the office of one of the defendants. They cannot now complain that the plaintiffs failed to produce it.

The publication of notice to "all persons claiming any interest in the lands" made in the foreclosure proceeding does not remedy the lack of service of summons. Speaking to the subject in Eason v. Spence, supra [232 N.C. 579, 61 S.E.2d 722], Ervin, J., says: "* * * it is now well established by authoritative decisions that the provisions of section 5 of Chapter 260 of the Public Laws of 1931 relating to the posting of notices and the making of general advertisements as a procedure for bringing unnamed claimants before courts in tax foreclosure suits offend the constitutional guaranty of due process of law because such procedure does not afford the claimants reasonable notice and reasonable opportunity to be heard."

The limited scope or purpose of such notice as now required by G.S. § 105-391 is likewise discussed in Wilmington v. Merrick, supra.

In any event, the judicial sale upon which defendants rely was a tax foreclosure sale and "it is the duty of one who would purchase a tax title to investigate, or cause to be investigated, all sources of title, `and if he fail to do so, it is his folly, against which the law, that encourages no negligence, will give him no relief,' Foy v. Haughton, 85 N.C. 168, 169." City of Wilmington v. Merrick, 234 N.C. 46, 65 S.E.2d 373, 375. This rule applies with particular force when the very contents of the deed the purchaser receives puts him on notice that no title is assured but, as here, the grantor conveys only such title as he received under the commissioner's deed.

No statute of limitations bars the right of plaintiffs to maintain this action. Board of Com'rs of Roxboro v. Bumpass, supra.

The commissioner's deed to the county and the county's deed to Deans are no more than quitclaim deeds. Wilmington v. Merrick, supra, 234 N.C. 46, 65 S.E.2d 373. The defendant purchased a "pig in the poke", but when he opened the bag he found no pig. For him the situation is unfortunate. It is nonetheless a situation for which the law affords no relief.

The judgment entered in the court below is affirmed.