
    GEORGE H. BROWN, Administrator, et al. v. F. C. HARDING, Administrator, et al.
    (Filed 31 May, 1916.)
    1. Judgments, Irregular— Collateral Attack.
    Judgments appearing of record to have been obtained according to the course and practice of the court, with nothing on their face to show invalidity, will not on appeal be set aside or their liens destroyed for mere irregularity.
    2. Judgments — Clerk’s Entries.
    The entry by the clerk of the court of the word “judgment” on his minutes of the court’s proceedings is sufficient for him to make the formal entry of the judgment afterwards upon the record, by stating the amount of the judgment, or the principal, with the date from which interest runs, and the title of the cause, with the costs.
    B. Judgments — Irregular Entries — Collateral Attack.
    Objection to the regularity in the entry of judgments by the clerk of court should be made by motion in the pending proceedings in the county wherein they were had, and not in a separate action, in a different county in a collateral attack on the judgments.
    4. Judgments — Eights of Parties — Collateral Attack.
    The question as to whether a party to an action may recover under a judgment therein rendered in his favor cannot be raised collaterally in an independent action upon the ground of its irregularity or informality.
    5. Judgments — Judgment Bolls — Statutes.
    The provisions of Revisal, see. 572, as to the judgment rolls are directory, though they should be complied with; and where a judgment is otherwise regular in form, it will not be declared invalid because the clerk had not attached the various papers relating thereto.
    6. Judgments — Estoppel.
    Where judgments rendered in an action declare that the plaintiff is the beneficial owner of one and the sole owner of the other, they may not be collaterally attacked in a separate action by showing the plaintiff was not the owner, or that the relation of attorney and client had theretofore ceased on account of the death of the client.
    7. Judgments — Payment—Parties.
    In this case, upon paying the amount of the judgment into court the judgment debtor is acquitted of liability thereunder, and he is not concerned with whether certain other parties to the action should have been made.
    8. Limitation of Actions — Homestead—Judgments—Statutes.
    The statute of presumptions (Rev. Code, ch. 65, sec. 18) has been changed by our statute, Revisal, sec. 391, to one of limitations.
    
      9. Same — Suspension of Statute.
    By its express terms, Revisal, sec. 686, providing that the statute of limitations should run from the date of the sale of a homestead, is not retroactive in effect; and has no application where the sale of the homestead had theretofore been made, except from the date of its enactment, and in such instance the statute of limitations will be suspended during the continuance of the homestead to the extent indicated.
    10. Equity — Subrogation—Judgments.
    
      Semble, in this case, if the holder of a junior judgment paid a part of the senior judgment he is entitled to subrogation pro tanto, in the absence of some special agreement to the contrary.
    11. Issues — -Facts Assumed.
    An issue tendered which assumes the existence of a disputed fact is improper.
    12. Judgments — Partnership—Surviving Partner — Issues.
    In this case it is held proper that an issue should be submitted to ascertain the surviving partners of a partnership alleged to be the beneficial owners of the judgments in question.
    PetitioN to rebear tbe above entitled case, wbicb was decided at tbe last term (170 N. 0., 253).
    
      S. J. Everett for plaintiffs.
    
    
      Harry Skinner and L. G. Cooper for intervenors.
    
    
      W. F. Evans for defendcCnts Perkins et al.
    
    
      N. Y. Gulley and A. C. Bernard for defendant Bernard.
    
   Walker, J.

Tbe errors assigned are substantially tbe same as those we considered in tbe original appeal.

First. Tbe objection tbat tbe judgments upon wbicb tbis suit is based were invalid or irregular and, therefore, were not liens upon tbe land, is clearly untenable. There is nothing on tbe face of tbe judgments to show their invalidity, but, on tbe contrary, everything to show tbat they were rendered according to tbe course and practice of tbe court. These judgments are more certain and formal than were those in Davis v. Shaver, 61 N. C., 18, and Sharpe v. Rintels, ibid., 34, which were held to be sufficient. See, also, Logan v. Harris, 90 N. C., 7; Ferrell v. Hales, 119 N. C., 199; Taylor v. Ervin, ibid., at p. 277. In tbe last three cases tbe Court says tbat while there should be some entry showing tbat a judgment was rendered, a simple memorandum by tbe clerk, such as tbe word “judgment,” is sufficient for tbe clerk to make tbe formal entry afterwards, by stating tbe amount of tbe judgment, or tbe principal, with tbe date from wbicb interest runs and tbe costs, wbicb are itemized, and tbe title of tbe case. What else could be inserted in tbe entry in order to make it more formal? Tbe entries give all necessary information as to what tbe court did and are certain in every particular. ’ If there was any mere irregularity, tbe defendant should have proceeded by motion in tbe original cause in Beaufort Superior Court, as stated in tbe former opinion. He cannot attack tbe judgment collaterally in Pitt Superior Court on tbat ground.

Second. As to whether tbe plaintiffs in those judgments, as- their names appear on tbe record, were entitled to recover, is a question which was foreclosed by the judgments. The defendant appeared by attorney in the actions, demurred in one case and also answered, and answered in the other case; and being thus in court, if there was any error in the judgments of the court, the defendant should have appealed; and if any irregularity — that is, if the judgments were taken contrary to the course and practice of the court — the remedy-was equally plain, viz., a motion in the causes to set them aside. The provisions of Revisal, sec. 572, as to the judgment roll should of course be complied with, but they are directory, and the clerk’s failure to “attach together” the papers, that is, process, pleadings, and judgment, etc., did not vitiate the judgment, -which was entered of record and is regular in form. The papers were all on file, and the mere failure, if there is any proof of it here, to fasten them -together surely should not invalidate a solemn and formal judgment of the court. The ease of Dewey v. Sugg, 109 N. C., 335, does not so hold, as another question was involved, but Chief Justice Merrimon does intimate strongly, in accordance with the view we have expressed, that where the entries on the judgment docket show the important or material and constituent facts, to wit, names of the parties, relief granted, date of rendition, and time of docketing, the judgment will be complete. Our conclusion is that the judgments are valid liens upon the land. It was not necessary that copies of the judgment rolls should be filed in the Superior Court of Pitt County. Wilson v. Patton, 87 N. C., 318. The judgments docketed in Pitt County are liens on the land in that county, and not those docketed in Beaufort County.

Third. We deem it unnecessary to say much about the interest of Henry 0. and Edward Parsons in the judgments. Mr. Satterthwaite appears, on the face of the docketed judgments, to be the sole owner of one and the beneficial owner of the other judgment, and his administrator, therefore, is entitled to recover the amount thereof. Defendants cannot impeach the judgments collaterally by showing that the plaintiffs named in them are not the owners, when the court has adjudged that they are. There is no relation of attorney and client to be dissolved by the death of the attorney, so far as. the judgments show, and it is too late to raise any such question now in this collateral proceeding. It appears from the judgment that Mr. Satterthwaite became indorsee of one and the beneficial owner of the other. The court so declared and adjudged, and we are now bound by the judgment, which is conclusive as to those matters. The defendant will be protected by paying the money into court. But we have sufficiently discussed this phase of the case in the former opinion.

. The Revisal, secs. 475, 476, 477, requires an objection because of a defect of parties to be taken by demurrer or answer, as the case may require. If it is so taken and the court rules erroneously in regard to it, the remedy is by appeal and not by a collateral attack on the judgment after it is rendered. It does not concern the debtor who receives the money, if he is acquitted of liability. Newsom v. Russell, 77 N. C., 277. The Parsons may come in by leave of the court and make themselves parties, if they are beneficially interested in the judgments, and are not already parties. They are proper but not necessary parties, as the facts now appear.

Fourth. There is no averment by the representatives of the defendant in the judgments that they have, in fact, been paid. The statute of limitations (Revisal, see. 391) has taken the place of the former statute of presumptions (Rev. Code, ch. 65, sec. 18) in respect to judgments. The law in regard to laches and stale claims and lapse of time does not apply here, for the plaintiff in the judgment could not proceed to enforce it, as he was forbidden by the statute to do so. Speaking of the presumption of payment, as one of fact, under the old law, the Court by Chief Justice Smith said in Long v. Clegg, 94 N. C., 763, 769: “Now, is it not manifest that the plaintiff could not sue or collect his bond at all during the time there was no administrator of the deceased obligor? Did not the reason of the rule of presumption of payment cease when the creditor could not collect his bond? Was not such inability to sue quite as strong and as good a cause to destroy the presumption of payment as that of the continued insolvency of a debtor, from the time the right of action accrued until the end of ten years? The latter cause has always been held to be sufficient to repel the presumption. It is said that the plaintiff might have sued the intestate of the defendant before his death, and so he might, but he was not bound to do so — -no presumption of payment had arisen then; and as he did not sue, surely he ought not to lose his debt because he could not for ten years after-wards. Such injustice is not the spirit of the rule of presumption in question. It is said, also, that in such cases when the time begins to run nothing can interpose to prevent the continuance of such lapse. I cannot accept this view as correct. The very nature of the principle of such presumption of payment contravenes it. The presumption itself implies that it may be rebutted by any interposing fact that destroys its reasonableness and shows that it is unfounded in truth. The presumption of payment arising from lapse of time is in the respect mentioned different from a -statute of limitations. The latter is inflexible and unyielding; it ceases to operate only in the way and for the cause prescribed by the statute.”

Tbe plaintiff in tbe judgment could not issue process tbereon during tbe existence of tbe homestead, and therefore it would not be just to raise any presumption against him from bis inaction. Besides, tbe law suspended tbe operation of tbe statute of limitations during said period. Revisal, sec. 685, Pell's Ed., p. 362.

Eifth. As to tbe statute of limitations and tbe duration of tbe lien of tbe judgments, counsel for tbe defendant with bis usual frankness admitted that if Bevan v. Ellis, 121 N. C., 224, is not overruled, bis position is untenable. We do not see why tbe decision in that case should be disturbed, as it is a correct exposition of tbe statute. It was there decided that tbe lien of á judgment on land, which bad been allotted as a homestead, does not cease at tbe expiration of ten years from tbe rendition and docketing of tbe judgment, but continues so long as tbe homestead exists, notwithstanding a sale and conveyance of tbe land, citing Stern v. Lee, 115 N. C., 426, and other cases. Tbe statute declares that a judgment shall not be affected by laxóse of time, or tbe statute of limitations, during tbe existence of tbe homestead (Revisal, sec. 685, Pell’s Ed., p. 372), but that tbe running of tbe statute of limitations shall be suspended during said time, and there is nothing in Sash Co. v. Parker, 153 N. C., 130, that militates against this view. It was there said that tbe law, in this aspect, bad at least been settled by Public Laws 1905, ch. 111 (Bevisal, sec. 686), which provides that tbe statute begins to operate when tbe homestead is conveyed, as tbe creditor can then proceed against tbe land. Tbe decision in that case was based upon this change in tbe law, but the statute was in force only from tbe date of its ratification, as there is a proviso in it that it shall not have "any retroactive effect.” It would not, therefore, bar plaintiff’s right or impair tbe lien of bis judgments, as it can by its own terms only operate prospectively. Tbe Legislature merely changed tbe law, as it bad tbe right to do, but it is admitted in tbe case cited that tbis Court bad just previously declared tbe law, as then existing, to be otherwise. It may be that tbe act of 1905 would have operated prospectively anyhow, or if tbe proviso bad not been inserted, but tbe Legislature, believing that if it was construed to oj)erate retrosj)ectively great injustice might result, provided expressly that it should have no such effect. It will be observed that in Bevan v. Ellis, supra, tbe Court treated tbe word “payments” in tbe act of 1885, cb. 359, as meaning “judgments,” and tbe context shows that it could not well have any other meaning, and that act was regarded as suspending tbe running of tbe statute of limitations during tbe existence of tbe homestead. We are therefore of tbe opinion, as we were at tbe former bearing, that tbe act of 1905 does not so affect tbis case as to bar tbe judgments or destroy their liens. We should, perhaps, add that under tbe view of tbe facts taken by tbe Ber-nards tbe judgments are not barred, nor bave tbe liens expired, as even, in tbat case, tbe statute ceased to run wben tbe original summons (of plaintiff George II. Brown, administrator) was issued on 8 May, 1913.

Sixth. Tbe next question is tbe one of subrogation. If Mrs. Bernard paid $600 to R. A. Tyson, assignee and owner of tbe senior judgment entitled W. M. B. Brown, admr. of Richard Short, v. J. J. Perkins, and thereby discharged tbe lien or encumbrance of tbe judgment to tbat extent, it would seem tbat in equity she would be subrogated to Tyson’s rights under the judgment pro tanto, so far as she has paid on tbe same, unless there was some agreement in respect thereto or other matter which would prevent the application of this equitable doctrine. Liles v. Rogers, 113 N. C., 197; 37 Cyc., 363-384; Publishing Co. v. Barber, 165 N. C., 478. We said as much before, and directed issues to be submitted to tbe jury to ascertain tbe facts in regard to this alleged payment and tbe nature of it. Tbe jury bad found no facts, as tbe court refused to submit any issues. We will not suggest tbe form of tbe issues, but leave tbe court free to adopt those which may at tbe next trial seem proper under tbe circumstances. The eleventh issue tendered by tbe Bernards appears to assume, in the first part of it, tbe existence of a fact which is disputed. This defect may easily be remedied.

It would be useless to prolong this discussion, as all other matters, and even those considered in this opinion, are fully covered by tbe former opinion in tbe case, to which we refer. Tbe. appellant has not raised any material questions in bis petition except those we bave considered herein.

Tbe question has been raised by tbe defendants as to whether tbe persons named as interpleaders are tbe surviving partners of C. S. Parsons & Sons, who, it seems, claim to be the real or beneficial as distinguished from tbe legal owners of both said judgments. It may be tbat E. B. Sattertbwaite was acting merely as attorney for C. S. Parsons & Sons, and the jury bave found, in response to tbe sixth issue, tbat O. S. Parsons & Sons are tbe equitable owners of both judgments. If any question is made as to tbe interpleaders, Edward Parsons and O. S. Parsons, being tbe surviving members of tbe partnership of C. S. Parsons & Sons, and as such entitled to tbe proceeds of tbe two judgments in ease of their collection, an issue should be submitted, if tbe matter is contested, in order tbat there may be a definite finding upon tbe question. This, though, will not affect tbe right of tbe nominal plaintiffs in tbe judgments, who in law also are tbe legal owners thereof, to recover thereon in this action.

Tbe objections of tbe defendant Perkins to tbe testimony of R. A. Tyson and to tbe introduction of tbe assignment can be renewed at tbe next trial, and also tbe objection to issues tendered by tbe Bernards. Nothing has been decided that deprives him of this right, nor do we see why the defendants may not show, if they can, any fact that will defeat the equity of subrogation which the Bernards assert, as that matter has been left open by the decision of this Court. When the facts are fully developed, the rights of all parties may be determined. As it may be found that the W. M. B. Brown judgment is still in force and subsisting as a prior lien on the lands, that is, both parcels, it may be that the proceeds of sale of the unsold Perkins land may be exhausted in paying that judgment, and the question as to the right of Mi’s. Bernard’s heirs to have the Perkins land sold first may not arise or become a practical one. It was considered before upon the theory only that as between the plaintiffs and the Bernards, if the other and senior judgment was out of the way, the Bernards would be entitled to this equity.

The plaintiff in this suit, George H. Brown, has no other interest than as administrator of Mr. Satterthwaite to collect the amount due on the judgments for the benefit of his trust and in discharge of his official duty, and he will hold it for the benefit of the parties to whom the fund belongs, after reserving any sum properly chargeable against it..

We see no reason for a change of the former judgment.

Petition denied.

BeowN, J., did not sit in this ease.  