{
  "id": 8608058,
  "name": "THEODORE R. ANGE, CLARA E. ANGE and HENRY L. ANGE v. A. LLOYD OWENS, MILDRED OWENS and EDWARD L. OWENS",
  "name_abbreviation": "Ange v. Owens",
  "decision_date": "1944-10-11",
  "docket_number": "",
  "first_page": "514",
  "last_page": "516",
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    "name_abbreviation": "N.C.",
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    "name": "Supreme Court of North Carolina"
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      "cite": "190 N. C., 471",
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      "cite": "122 N. C., 288",
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        8596452
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  "last_updated": "2023-07-14T21:53:33.218655+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "THEODORE R. ANGE, CLARA E. ANGE and HENRY L. ANGE v. A. LLOYD OWENS, MILDRED OWENS and EDWARD L. OWENS."
    ],
    "opinions": [
      {
        "text": "Sea well, J.\nAs the case hinges on the question whether these judgments are absolutely void or merely irregular, it will not be necessary to consider other contested features.\nThe law has undergone various changes with respect to the days on which the clerk might render judgment under the jurisdiction given him by the Civil Procedure Act of 1921 (Extra Session) and amendments. At the time the judgments challenged by the plaintiffs as void were rendered \u2014 respectively, Friday, 24 March, 1933 (ordering sale), and Tuesday, 16 May, 1933 (confirming sale and ordering deed made)\u2014 section 597 (b) of Michie\u2019s Code, chapter 92, s. 10, Extra Session of 1921, chapter 68, Public Laws of 1923, fixed the time for entry of such judgments. It reads in part as follows: \u201cNo judgment shall be entered by the clerk, except as herein otherwise provided, except on every Monday of each month.\u201d No other provision of the law at that particular time authorized the rendition of a judgment of this sort on any other day.\nAs to whether a judgment of this sort, rendered by the clerk of the court on any other day except the Mondays designated by the statute, is void or irregular is no longer an open question here. In Beaufort County v. Bishop, 216 N. C., 211, 4 S. E. (2d), 525, Mr. Justice Win-borne, speaking for the unanimous Court, said :\n\u201cIn the present case the clerk, by entering two decrees, one on 10 February, 1939, and the other on 21 February, 1939, has undertaken to confirm the sale and to order title made and executed. The first of these orders was on Friday, and the second on Tuesday. Therefore, the clerk having undertaken to act at a time when he had no jurisdiction to act, the purported orders of confirmation are void and give no force or validity to the deed of the commissioner purporting to be executed thereunder. McCauley v. McCauley, 122 N. C., 288, 30 S. E., 344.\u201d\nThat Gf. S., 1-215.1, chapter 301, sec. 4, Public Laws of 1943, was directly intended to cover a situation of this kind, and to validate judgments thus rendered, there can be no question. However, it is well understood that the Legislature has no power to validate a void judgment, or indeed to give validity of any sort to a proceeding absolutely void, since \u201cex nihilo nihil fit is one maxim which admits of no exceptions.\u201d Chemical Co. v. Turner, 190 N. C., 471, 130 S. E., 154.\nWe have considered the question of the bar of the statute of limitations, and are of opinion that in this ease, since the defendants hold under a void deed as color of title and must, for the purposes of this motion, be regarded as tenants in common with the plaintiffs, their status as to any title by adverse possession under color they may now assert must be determined by Gr. S., 1-39, rather than Gf. S., 1-38. The requisite twenty years has not expired. Whether any statute of limitations is available to defendants during the pendency of the foreclosure proceeding, it is unnecessary for us to decide.\nThe judgment from which appeal is taken was correct and is\nAffirmed.",
        "type": "majority",
        "author": "Sea well, J."
      }
    ],
    "attorneys": [
      "Rodman \u25a0& Rodman for defendants, appellants:",
      "John A. Mayo, Junius D. Grimes, and Z, V. Norman for plaintiffs, appellees."
    ],
    "corrections": "",
    "head_matter": "THEODORE R. ANGE, CLARA E. ANGE and HENRY L. ANGE v. A. LLOYD OWENS, MILDRED OWENS and EDWARD L. OWENS.\n(Filed 11 October, 1944.)\n1. Constitutional Law \u00a7 4a\u2014\nTbe Legislature bas no power to validate a void judgment, or indeed to give validity of any sort to a proceeding absolutely void.\n2. Judgments \u00a7 22h: Clerks of Superior Court \u00a7 3\u2014\nTbe former statute, Micbie\u2019s Code, sec. 597 (b), providing that no judgment shall be entered by tbe clerk except on Monday, unless otherwise provided, makes void and of no effect such judgment of tbe clerk on any other day. G. S., 1-215, and 1-215.1 have 'changed this requirement.\n3. Adverse Possession \u00a7 13f: Judgments \u00a7 22h\u2014\nWhere one tenant in common claims sole seizin and adverse possession under a void judgment, his status, as to any title by adverse possession must be determined by the twenty-year statute, G. S., 1-39, rather than the seven-year statute, G. S., 1-38.\nAppeal by defendants from Thompson, J., at January Term, 1944, of 'WASHINGTON.\nTbis action was brought by the plaintiffs to clear the title of their interests in certain, lands described in the complaint and to have adj\u2019udged the several interests of the parties plaintiff and defendant therein as tenants in common.\nSince it appeared to the court that the rights respectively \u2022 of the plaintiffs and the defendants depended upon the validity of a certain deed under which the defendants claim, made under an order of court in a tax foreclosure proceeding theretofore pending in Washington County, in which proceeding the persons now before the court were parties or to which they were privies, the court below treated the present action as a motion in that cause, and by the acquiescence of the parties, proceeded to find the facts and to enter his judgment.\nUpon these facts it appears that all of the parties claim under Levi H. Ange, who owned the disputed lands in fee, which, upon the death of Levi, descended to his children, Henry, Theodore, Clara and Lucy, subject to the dower interest of his widow, Cornelia, which has now terminated.\nSome time in 1931, Lucy Ange Radford and her husband conveyed an undivided one-fourth interest in the land to A. L. Owens, now deceased, to whom A. Lloyd Owens, Edward L. Owens, and Mildred Owens, the defendants, are heirs at law.\nShortly before the death of A. L. Owens,'Sr., Edward L. Owens instituted an action in Washington County against the plaintiffs herein, and also his father, A. L. Owens, as codefendant, and others, to foreclose a tax lien on these lands, claiming that he had purchased the same at a tax sale for taxes for the year 1930.\nIt appears that at the foreclosure sale one E. G. Arps bid off the land as agent for A. L. Owens, Sr. The sale was confirmed, and in the judgment of confirmation, it was ordered that the commissioner make a deed to the lands to the said E. G. Arps, which was done. Arps conveyed the lands, without consideration, to A. L. Owens, who went in possession thereof.\nThe defendants claim sole seizin to the entire land through this deed to Arps \u2014 mesne conveyance to A. L. Owens, Sr., and inheritance from him.\nIt is found as a fact, and not disputed, that the j\u2019udgment ordering the sale was rendered on Friday, 24 March, 1933, and the j\u2019udgment confirming the foreclosure sale and ordering deed made to Arps was rendered on Tuesday, 16 May, 1933. Neither judgment, therefore, was rendered on Monday as required by the statute, but respectively on Friday and Tuesday, It is the contention of the plaintiffs that the judgments are, therefore, void. The defendants contend that they are valid, or that, at most, they were merely irregular and that this irregularity was cured by the statute, G. S., 1-215.1.\nThere are also questions raised as to laches of the plaintiffs in failing to apply for relief promptly, of the bar of statutes of limitations; and as to the trust arising by virtue of the fact that A. Lloyd Owens, Sr., a eotenant, bought the land for his own benefit. The basis of decision does not require them to be set out in detail.\nRodman \u25a0& Rodman for defendants, appellants:\nJohn A. Mayo, Junius D. Grimes, and Z, V. Norman for plaintiffs, appellees."
  },
  "file_name": "0514-01",
  "first_page_order": 562,
  "last_page_order": 564
}