{
  "id": 11270381,
  "name": "SARAH A. HARGROVE et al. v. JOHN E. WILSON",
  "name_abbreviation": "Hargrove v. Wilson",
  "decision_date": "1908-10-14",
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  "first_page": "439",
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    "name": "Supreme Court of North Carolina"
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  "last_updated": "2023-07-14T19:55:17.237307+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "SARAH A. HARGROVE et al. v. JOHN E. WILSON."
    ],
    "opinions": [
      {
        "text": "BkowN, J.\nThe record discloses that on 24 September, 1901, an ex parte proceeding for partition was commenced before the Clerk in the name and behalf of John E. Wilson, the defendant in this ease, and of Sarah A. Hargrove, and the other plaintiffs in this action, for the sale for partition of the land described in the complaint. The petition is signed by certain attorneys as \u201csolicitors for petitioners,\u201d and is verified by the oath of J. E. Wilson. On the same day a decree of sale was made by the Clerk, and a commissioner was appointed with authority to sell the land at either public auction or private sale. At the public sale the defendant, John E. Wilson, became the purchaser for the price of $500 and the sale was confirmed in May, 1902, by the Clerk, whose order was approved by a Judge of the Superior Court.\nThis action is brought to set aside the decree and sale of the land, upon the ground that plaintiffs were not made parties to the proceedings, with their knowledge and consent.\n\u25a0When the case was called for trial the defendant moved to dismiss the action, upon the ground that the record in the partition was regular in form and that it appeared on its face that the plaintiffs were parties to it and that it could not be attacked collaterally in this action. The motion was' overruled and the defendant excepted.\nIt is elementary learning that a decree of a court having jurisdiction in a proceeding, in all respects regular on its face as to parties, cannot be attacked collaterally. It may be successfully impeached for fraud in an independent action brought for the purpose, when sufficient allegations of fraud are made and issues framed upon sneb allegations are submitted to a jury and tbe fraud is established by the verdict. Tate v. Mott, 96 N. C., 19 ; Morris v. White, 96 N. C., 93; Carter v. Rountree, 109 N. C., 29; Rackley v. Roberts, 147 N. C., 201; Simmons v. Box Co., ante.\nIn this case there are no sufficient allegations of fraud set out in the complaint, and no issue of fraud was tendered by the plaintiff or submitted to the jury by the court. The gravamen of plaintiffs\u2019 complaint is that John E. Wilson, the defendant, and his attorneys instituted the partition proceed: ings of their own motion, without the knowledge, consent or authority of these plaintiffs, and that, while these plaintiffs appear on the record as parties to it, as a matter of fact they were not parties. A person who has never been made a party to a judicial proceeding cannot bring an independent action to' set it aside on the ground of fraud. He has no reason whatever to invoke the equitable power of the court for any such purpose, in that he has not been injured. He has an adequate Remedy at law by proceeding in the cause to which he is apparently a party, and moving therein to set aside the judgments and decrees, so far as they affect him, and to correct the record so as to show in fact that he was not a party. Carter v. Rountree, supra.\nThe partition proceeding under which the land was sold appears to be in all respects regular, and these plaintiffs appear on its face tp be parties to it; therefore they are apparently bound by it. If it should be established as a fact that they were made parties without their knowledge or consent, and have not ratified and assented to the proceedings and decree, then they may be set aside by motion in the cause. Burgess v. Kirby, 94 N. C., 575.\nWe have discussed only the general law, applicable to all judicial proceedings alike, in its reference to this ease. But as to proceedings in partition especially the General Assembly seems to have provided that they can only be attacked, set aside or impeached for fraud or mistake, or upon any other ground, by \u201cpetition in the cause.\u201d Revisal, see. 2513, after prescribing the machinery by which sales of land may be made in special proceedings, further provides \u201cthat any party, after the confirmation, shall be allowed to impeach the proceedings and decrees for mistake, fraud or collusion by petition in the cause.\u201d Here is a full, complete and adequate remedy provided by law, under which the plaintiffs can seek relief, even for fraud or mistake or on other ground.\nHis Honor should have sustained the motion.\nAction Dismissed.'",
        "type": "majority",
        "author": "BkowN, J."
      }
    ],
    "attorneys": [
      "George E. Bulter and F. B. 'Cooper for plaintiffs.",
      "H. A. Grady and Faison & Wright for defendant."
    ],
    "corrections": "",
    "head_matter": "SARAH A. HARGROVE et al. v. JOHN E. WILSON.\n(Filed 14 October, 1908.)\nLands \u2014 Partition\u2014Judgments\u2014Collateral Attack \u2014 Fraud or Mistake \u2014 Statutory Remedy.\nWlien land is sold and the sale confirmed, in proceedings for partition of lands, and the record therein is regular in form, and on its face it appears that plaintiffs were parties, the proceedings cannot be collaterally attacked, as the remedy is by petition in the cause, under Revisal, sec. 2513.\nActioN heard before W. B. Allen, J., and a jury, at December (Special) Term, 1907, of Samipson, to vacate and s\u00a7t aside a'proceeding for partition and the decree therein rendered by the Clerk, of the Superior Court of Sampson County.\nDefendant appealed.\nGeorge E. Bulter and F. B. 'Cooper for plaintiffs.\nH. A. Grady and Faison & Wright for defendant."
  },
  "file_name": "0439-01",
  "first_page_order": 469,
  "last_page_order": 472
}