#### LUCRETIA RHODES and MARY RHODES v. MARTIN RHODES, J. M. McPHERSON, MARY McPHERSON, ISABELLA McPHERSON, T. J. McPHERSON, HUGH McPHERSON.

(Decided November 14, 1899).

Partition Proceedings — Publication for Defendant — Defense After Juclgment — Sec. MO of The Code.

1. Tbe defense intended to be allowed, under sec. 220, of Tbe Code, to one wbo1 bas not been actually, but only constructively, in court (by publication) is not confined to matters wbicb if pleaded in apt time would defeat tbe action.

2. Being a remedial statute, a just construction allows tbe party against whom a judgment bas been taken, to set up any exception wbicb would bave prevented or modified tbe judgment, e grege, inequality of partition.

MotioN to set aside judgment in proceeding for partition of land, heard on appeal from the Clerk of Mooke Superior Court, by Timberlahe, J., at Chambers, in Rockingham, N C., on October 19, 1899. The motion was made before the Clerk by defendant Martin Rhodes, a nonresident, brought in by publication, on the ground of inequality in the division. The Clerk refused to set aside the judgment, and Martin Rhodes appealed to the Judge at Chambers, who rendered the following judgment:

This cause comes before [the Court] on appeal from the refusal of Clerk Superior Court of Moore County to set aside the decree heretofore made in this cause, on motion of Martin [Rhodes']. It is admitted that summons was served by publication as to Martin Rhodes, on December 3, 1896; that a ■ decree appointing commissioners to divide the land was made January 2, 1897; that their report was filed January 9, 1897; that said report was confirmed January 30, 1897, no exceptions having been filed by any of the parties; that a *192petition to set aside decree was filed October 6, 1891, by Martin Rhodes.

The Oonrt finds as a fact, that one of the commissioners to make the division was related to the parties, but was not aware of same at the time of so acting, and that the partition as made is unjust, and the share allotted to Martin Rhodes is of less value than the share allotted to the other tenants in common. Therefore, it is ordered that the decree hereinbe-fore made be set aside, and that Martin Rhodes be allowed to answer and fefend this action.

E. W. Timbbelake,

Judge Holding Gowrts 7th District.

To the foregoing judgment the plaintiffs excepted, and appealed to the Supreme Court.

Messrs. Black & Adams, for appellant.

Beawell & Burns, for appellee.

Ouaiuí, J.

This is a motion under The Code, sec. 220, made in the prescribed time by a nonresident who' had been made a party by publication to come in after judgment in a partition proceeding. The Court found as a fact (Utley v. Peters, 72 N. C., 525), that the partition as made is unjust, and the share allotted to the petitioner is of less value than that allotted to the other tenants in common, ordered the decree heretofore made set aside, and that the petitioner be allowed to answer and defend in this action. There is no contention that any of the property has been sold to a purchaser in good faith, nor on the other hand, of irregularity in the order of publication, as in Bacon v. Johnson, 110 N. C., 114.

The appellants contend that the right given by sec. 220 to come in and defend after judgment, extends only to defenses *193upon tbe merits, i. e., as to tbe allegations as to tenancy in common, or tbe number of shares, or tbe right to partition under tbe circumstances, and does not extend to exceptions to tbe report of commissioners on the ground of inequality, and tbe like. But we do not think tbe word “defend” in this section has tbe restricted meaning contended for by tbe appellants. Tbe object of this section is to enable a nonresident, who has not been personally served with summons, to come in within tbe prescribed time after judgment and assert bis rights as fully in every respect as be could have done before judgment bad be been personally served, saving as tbe section provides tbe rights of anyone who has bought tbe property in good faith under tbe decree of sale in tbe cause. Tbe defense intended to be allowed one who has not been actually but only constructively in court, is not confined to those matters which, if pleaded in apt time, would defeat tbe action. Being a remedial statute, a just construction is, that it allows tbe party against whom a judgment has been taken to set up also any exception which would have prevented or modified tbe judgment.

This proceeding is under Tbe Code, sec. 220, and is not to impeach tbe former judgment for fraud and irregularity, though in partition proceedings even that could be done by petition in tbe cause (Code, sec. 1896), which is an exception to tbe general rule that a judgment can be attacked for fraud only by an independent action.. Murray v. Southerland, at this term.

No error.