majority"> Avery, J.

after stating the case: Reversing the order in which the points were presented by counsel, and assuming for the present that the judgment in the special proceeding— by virtue of which Sallie Barnett bought the land in controversy, which she has since sold to several other defendants — cannot be attacked, on account of irregularities in this action brought in the Superior Court, it would only remain to determine whether, without impeaching that judgment, the plaintiffs, admitting the truth of every allegation contained in the complaint, have shown prima facie that they have title to the land in controversy. If the judgment be treated as valid and the sale and confirmation unimpeachable for present purposes, then the deed executed to Sallie Barnett by the Commissioner, would, as against the parties to that record, claiming likewise through their father (Man-gum Barnett), show title in her, and unless it appeared from the complaint (if admitted to be true) that the sale Avas void, because it was made in violation of article 10 of the Constitution, and the statutes enacted in pursuance of it in reference to homestead exemptions, the plaintiffs cannot recover. Mobley v. Griffin, 104 N. C., 112. The burden was upon the *169 plaintiffs, in view of such proof, to establish their right to have had a homestead allotted in the laud'sold; and here the question to be determined, as on demurrer to the complaint, is whether, according to their own allegations, the sale may have been, in any phase of their statement, or under any state of facts that may be fairly inferred from it to have existed at that time, made without any infringement upon the right of the plaintiffs under the Constitution and laws to claim and have assigned to them a homestead in a portion or all of the land sold. Mobley v. Griffin, supra; McCracken v. Adler, 98 N. C., 400; Wilson v. Taylor, Ibid, 275. If the debts of the intestate, to mett which the license was granted to the administrator to sell, were contracted before the homestead provision of the Constitution became operative, or were taxes due the State, or were contracted for the purchase-money of the land, the plaintiffs were not entitled to the homestead in the land sold under the decree against creditors holding such claims. Long v. Walker, 105 N. C., 90; Constitution, art. 10, § 2.

It has been expressly decided by this Court that where a plaintiff offers in evidence, in an action involving the title and right to the possession of land, the record of the judgment, execution, levy and sale of the land in controversy, as the property of the defendant, or of one from whom the defendant is shown to derive title, the latter cannot rebut this prima facie proof of title by a simple denial or by an allegation, without testimony tending to establish it, that he is entitled to the homestead in the land in dispute. Mobley v. Griffin, supra. Upon the same principle, if a plaintiff allege in his complaint facts which, if true, establish prima facie the title of the defendant as against him by a deed made in pursuance of a judgment of the Court, the general allegation that such sale was void for failure to allot a homestead without ,averring specifically the facts upon which the right to the homestead depends, so as to exclude the possibility of *170 the validity of the sale, consistent with such statement-, must be held insufficient to meet and rebut the apparent right of the plaintiff to recover. Upon a careful review of the complaint, it appears that the plaintiffs have failed, if they could truthfully have done so, to negative the possibility that the land was sold to make assets to satisfy debts created before the right to such exemptions accrued. We concur with the Judge below in the view that the facts alleged by the plaintiffs are not sufficient to relieve them of the burden of showing their right to have a homestead assigned in said land, if we grant that the irregularities (if any appeared upon the face of the record of the special proceeding) would not be sufficient to destroy its efficacy as evidence of the validity of the sale under which Sallie Barnett and the other defendants, through her, claimed title.

But, recurring to the other question, which so frequently confronts us with slight variations in the facts, but no difference in the general principles applicable, we think it manifest that the judgment in the special proceeding can only be attacked directly by those who were parties to the proceeding, and that it would be a collateral impeachment of it to declare that, together with the subsequent orders of confirmation, etc., it did not constitute evidence that so much of the right and the title of Mangum Barnett, as descended to those whose names appear as parties of record, has passed to Sallie Barnett. England v. Garner, 90 N. C., 197; Fowler v. Poor, 93 N. C., 466; Ward v. Lowndes, 96 N. C., 367; Sumner v. Sessoms, 94 N. C., 371; Beard v. Hall, 63 N. C., 39; Simmons v. Hassell, 68 N. C., 213; Morris v. Gentry, 89 N. C., 248.

But the plaintiffs allege that Isabella Edwards was a child and heir at law of Mangum Barnett, and that neither she nor her husband, Hal Edwards, were either real or nominal parties to the special proceeding, and that she is not concluded as to her rights in the land by the decree of sale. The defendants deny the allegations of fact that she is an *171 heir at law of Mangum Barnett, and insist, by way of argument, that if she is, she cannot now claim a homestead in the land, because she is more than twenty-one years of age. If Isabella Edwards is one of the heirs at law, and is not estopped by the judgment in the special proceeding from claiming title to the interest that descended to her in common with the other heirs of Mangum Barnett at his death, then she is entitled to recover possession of the land, and to be let in, to the extent of her interest as tenant in common, with the defendants who have acquired, so far as wre can see in this action, the undivided interest of his other heirs at law. Gilchrist v. Middleton, 107 N. C., 663; Allen v. Salinger, 103 N. C., 14. If the sale, under a judicial decree, purporting to authorize the administrator of Mangum Barnett to sell this particular piece of land for assets, gives to the purchaser who holds the deed of the personal representative for the land sold, and those claiming under her, a title good against an heir at law, who was not a party to the proceeding, then the plaintiff Isabella cannot demand that the question w'hether she is or is not an heir at law be passed upon by the jury. But if she is not concluded, and the jury find that she is an heir at law, it is obvious that she is entitled, at least, to be let into possession and to have damages awarded in proportion to her interest. Gilchrist v. Middleton, supra.

Section 1438 of The Code provides that no order to sell the real estate of a decedent shall be granted to the personal representative until the heirs or devisees of the decedent shall have been made parties, and the statute is now substantially the same that has been in force since 1846. Revised Code, ch. 44, § 47; Thompson v. Cox, 8 Jones, 313. The law, therefore, obviously contemplates that those to whom any interest in the land has passed by descent or devise shall be made parties to any special proceeding instituted to subject such lands to pay the debts of the decedent. The general rule as to estoppels is that a decree of a Court of competent jurisdic *172 tion is binding on the parties to the suit or proceeding in which it is entered, and on those who are in privity with them in all collateral actions or proceedings, but, ordinarily, it is not conclusive as to strangers. Bigelow on Estoppel (4 Ed.), 24, 34; Edwards v. Baker, 99 N. C., 258; Coble v. Clapp, 1 Jones Eq., 173; Falls v. Gamble, 66 N. C., 455; Blackwell v. McElwee, 94 N. C., 425; Warden v. McKinnon, 99 N. C , 251. A judgment is not even binding on one who is not a party at the time of its rendition to the action or proceeding in which it is entered, though he had been a party previous to that time. Owens v. Alexander, 78 N. C., 1. The purchaser, Mrs. Barnett, might have successfully resisted the payment of the purchase-money on the ground that Isabella Edwards, if indeed she was an heir at law of Mangum Barnett, had not been made a party and concluded by the judgment. Edney v. Edney, 80 N. C., 81. But now that she has paid it in full, though she and those claiming under her may possibly resort to more than one remedy to make good their loss on account of the defective title, the doctrine of maintaining the integrity of judicial decrees cannot be pushed, as against strangers to the record, to the extremity of depriving them of their property without notice or a day in Court. . Isabella Edwards was not even a nominal party to the special proceeding, and the judgment did not purport to authorize the sale of any interest she might have. We think that there was error in the refusal to submit to the jury issues involving the title and right of possession of Isabella Edwards. The preliminary question, whether she was an heir at law of Mángum Barnett, could have been passed upon in considering the issue as to title. It was not alleged or contended that Isabella was an infant when the decree was made in the special proceeding.

While we concur with the Judge below in the general view which he seems to have taken of the law, we think that there was error in withdrawing from the jury the question *173 whether Isabella Edwards was an heir at law of Mangum Barnett, and, as such, entitled to be let in as tenant in common with the defendants.

Whether the action will be further prosecuted in her interest alone, or whether all will submit to nonsuit and await the result of a direct proceeding before moving for possession of the land, is a question addressed to the plaintiffs and their counsel.

There is error, and a new trial is awarded.

Error.

Citation profile

How this case has been treated — in progress