#### COUNTY OF JOHNSTON v. MRS. J. R. ELLIS and Husband, J. R. ELLIS.

(Filed 1 May, 1946.)

1. Judgments § 27d — Decree of foreclosure of mortgage, entered on motion in tax foreclosure suit held void as contrary to practice of court.

A county foreclosed the land in controversy in a tax foreclosure suit. One of the heirs at law, upon attaining his majority, moved to set aside the tax foreclosure on the ground that the suit was against the widow *269and that lie and the other heirs at law, who owned the land and who were minors at the time, were not parties to the suit. He was appointed next friend of his minor brothers and sisters. Pending this motion, the holder of a mortgage on the property intervened and joined in the allegations to set aside the tax foreclosure, and demanded sale of the lands to satisfy the mortgage. Judgment was thereafter entered setting aside the tax foreclosure and providing for the repayment of taxes and exp'enses to the purchaser at the tax sale. Upon a later hearing before the clerk, without notice, and in which the next friend did not participate, judgment was entered decreeing sale of the land to satisfy the mortgage. *Melé:*The motion to foreclose the mortgage introduced a new cause of action having no relation to the tax foreclosure suit and not necessary to the determination of that cause, and its inclusion and determination without amendment of the complaint, consent of the parties, or notice, renders the judgment void as being contrary to the course and practice of the court.

2. Courts § 2—

The court is without power to entertain, within the frame of a pending-action, without amendment or substitution, a new and independent cause of action unrelated in any manner to that to which its jurisdiction has attached.

S.Judgments § 25—

Where a new and independent cause is adjudicated in favor of an inter-vener against defendants upon a hearing before the clerk out of term and without notice, the judgment is so contrary to the course and practice of the court as to be beyond its jurisdiction and void and may be attacked by motion in the cause.

4. Judgments § 1: Infants § 14—

A guardian *aé litem,*much less a next friend of minors, cannot consent to a judgment against the minors without special authority of the court.

5. Infants § 14—

A next friend is appointed to bring or prosecute a proceeding in which the infant suitor is plaintiff or seeks to assert some positive right, while a guardian *aé litem*is appointed to defend, and the distinction between them in legal effect is substantial and not merely formal. G. S., 1-64 and 1-65.

6. Same-

While a next friend, in the prosecution of some positive relief for an infant suitor, may be called upon to defend against incidental or opposing rights, such as offsets, counterclaims, or other defenses or demands connected with the original claim, a next friend of minor heirs at law seeking to set aside a tax foreclosure is not required to defend a mortgage foreclosure asserted by an intervener in the action, and his representation of the minors in such unrelated and independent cause does not legally exist.

7. Same—

Where a next friend of minor heirs at law seeking to set aside a tax foreclosure obtains a judgment setting aside the sale and providing repay*270ment to tlie purchaser at the sale of taxes and. expenses, his office as next friend becomes *functus officio,*and he does not legally represent the minors upon a hearing thereafter had at the instigation of an intervening mortgagee to foreclose a mortgage on the land.

8. Mortgages § 31b—

Minor heirs at law appeared by their next friend and moved to set aside a tax foreclosure on the lands on the ground that they were not made parties *to*the tax foreclosure suit. Pending this motion, the holder of a mortgage intervened and joined in the allegations to set aside the tax foreclosure and demanded sale of the land to satisfy the mortgage. *Held:*Upon decree setting aside the tax sale, the mortgagee should have instituted suit to foreclose and secured the appointment of a guardian *ad litem*for the minorsj and a decree of foreclosure of the mortgage, entered in the tax foreclosure suit, is contrary to the course and practice of the court.

9. Cileries of Court § 3—

The jurisdiction of the clerk of the Superior Court is statutory and limited, and can be exercised only with strict observance of the statutes.

10. Same: Mortgages § 3Tb—

The jurisdiction of the clerk of the Superior Court to order foreclosure of a mortgage, G. S., 1-209 (e) ; G. S., 1-211, is conditioned upon his rendition of a default judgment in favor of the mortgage creditor against the mortgage debtor upon failure of an answer to a vertified pleading where the sum due is capable of ascertainment by computation, and where it is necessary to hear evidence to ascertain title to the mortgage debt and the amount of the debt, the clerk is without jurisdiction to order foreclosure.

11. Judgments § 26: Equity § 3—

Lapse of time is unavailing against a motion to set aside a void judgment. .

12. Judgments § 26: Limitation of Actions § 7—

G. S., 1-17, has no application to a proceeding to set aside a void judgment of foreclosure.

Appeal by movents from *Carr, J.,*at December Term, 1945, of JOHNSTON.

This proceeding began 30 December, 1930, as a tax foreclosure suit, under tbe current statute, chapter 221, Public Laws of 1927; chapter 204, Public Laws of 1929 (C. S., 8037); against Mrs. J. R. Ellis and her husband, J. R. Ellis, with service on Mrs. Ellis alone. The appellants are movents in that cause, asking that a certain mortgage foreclosure proceeding had in this action, and the judgment therein, be set aside for invalidity and that the Commissioner’s deed made under their authority be annulled and canceled from the record, and for incidental relief.

In the tax foreclosure suit service was made only against Mrs. Ellis, the return of summons stating that J. R. Ellis was dead. In fact, he *271bad died intestate several years prior to tbe issue of summons, leaving tbe present petitioners, minors, as bis beirs at law. While tbe tax foreclosure, in all phases of tbe proceeding, including tbe complaint, was against a 44% acre tract alleged to be owned by Mrs.' Ellis, she owned only a 22 acre tract, and tbe 22% acre tract, tbe subject of tbe present controversy, descended to and became tbe property of these petitioners and other children of J. R. Ellis at bis death. Tbe deed under which J. R. Ellis held was recorded in tbe Johnston County Registry and bad been on record since 1914, and tbe ownership is not disputed.

Tbe tax foreclosure suit ran its course and resulted in tbe sale of tbe 44% acre tract — supposedly including tbe tract descended to appellants— confirmation, and commissioner’s deed to tbe purchaser, E. J. Wellons, at tbe purchase price of $78.21, which included tbe taxes claimed to be due.

On 12 June, 1934, Joe Ellis, a child of J. R. Ellis, specially appearing, with counsel, filed a motion, supported by affidavit, to set aside tbe decree and deed made in tbe tax foreclosure proceeding on tbe ground that tbe beirs at law of J. R. Ellis, all minors at tbe time, bad not been made parties, and were not represented; that tbe proceeding itself was ineffectual for want of adequate description of tbe land in tbe advertisement, complaint, and deed, and for other defects, including tbe joinder and purported sale of petitioners’ 22% acre tract along with tbe 22 acre tract of Mrs. Ellis, as to tbe latter of which tracts tbe validity of tbe sale is not disputed. In tbe motion and supporting affidavit, tbe petitioner Ellis avers that be is acting as next friend for tbe minor children; and some days subsequent to tbe date of tbe affidavit and motion, be was,, upon affidavit declaring bis own fitness so to act, appointed next friend to act in tbe premises for such minor children.

Thereupon, L. G. Stevens filed an “interplea and motion” which repeats substantially tbe allegations of tbe Ellis affidavit. He further alleges that be is tbe bolder of a note executed by J. R. Ellis and wife dated 6 April, 1921, in tbe sum of $1,124.96, secured by a mortgage deed conveying both tbe tracts of land mentioned, containing two credits, one of $165.59, 10 February, 1925, and another of $102.00, 14 November, 1925, and demands recovery of $1,124.96 alleged to be due, with interest from 6 April, 1921, subject to tbe credits mentioned, and that a commissioner be appointed to advertise and sell tbe lands.

Tbe movent, Joe Ellis, did not answer or demur, either individually or as next friend.

E. J. Wellons, tbe purchaser at tbe tax sale, having been duly served with summons on 22 September, 1934, came in and answered tbe affidavit and motion of Ellis. Upon the bearing of tbe matter on 5 September, 1934, tbe clerk of tbe Superior Court, after finding of facts, proceeded *272to enter a judgment setting aside all tbe orders and decrees made in tbe case, set aside tbe deed made to Wellons and provided repayment to bim of all taxes and expenses paid. From tbis order no appeal was taken. Tbe record discloses no further participation of Joe Ellis, either individually or as next friend, in further proceedings.

Thereafter, on 3 June, 1935, tbe clerk of tbe court entered a judgment, after a bearing “upon tbe evidence filed herein and upon oral evidence and upon tbe exhibition of tbe notes and mortgages hereinafter referred to,” in which be found that L. G. Stevens bad sold, transferred and assigned bis note and mortgage to Cornelia A. Wellons, wife of E. J. Wellons, and that “she has voluntarily appeared herein and asserts her rights thereunder”; and adjudged that E. J. Wellons recover of tbe defendants tbe sum of $78.21, with interest from 2 November, 1932; that Cornelia A. Wellons recover against tbe defendants, naming Mrs. J. B. Ellis, tbe widow, and tbe children of J. B. Ellis, $1,124.96, with interest from 6 April, 1921, less certain credits, and ordered tbe land sold to satisfy tbe lien of tbe mortgage, appointing James B. Pool as commissioner for that purpose. Tbe record discloses no appearance of tbe next friend of tbe infant children or act done by bim in connection with tbe proceeding. Under tbis judgment dated 3 June, 1935, sale was made. Tbe commissioner reported tbe same, and tbe clerk of tbe Superior Court confirmed tbe sale.

On 12 September, 1945, tbe present petitioners, having become 21 years of age, entered a special appearance, and moved to set aside tbe judgment of 3 June, 1935 (in tbe foreclosure proceeding) and filed a supporting affidavit, as follows:

“Now comes Kenneth Ellis, Wilson Ellis, Milton Ellis, Alma Ellis Price, and William Ellis, whose names appear as some of the defendants, and respectfully show unto the Court.

“1. That as will appear from tbe summons issued in tbe above entitled action and from tbe return of tbe sheriff made thereon none of these movents were ever served with summons in tbis action.

“2. That at tbe time tbe purported judgment by default was entered herein all of these movents were under 21 years of age and no proceeding for tbe appointment of a suitable and proper guardian *ad litem*to defend said action for them was ever instituted nor was any guardian *ad litem*appointed, as required by tbe General Statutes of North Carolina.

“3. That as appears from tbe original pleadings in tbis cause, tbis was an action to foreclose tax liens in tbe amount of $47.54 allegedly due tbe plaintiff for tbe year 1927, and thereafter tbe defendants, E. J. Wellons and wife, Cornelia A. Wellons, attempted to improperly and *273unlawfully assert a cross-action not arising out of tbe subject of tbe action as set out in tbe complaint, tbe same baying no relation to plaintiff’s claim, wbicb said cross-action is absolutely void in so far as these movents are concerned.

“4. Tbat as will appear from tbe pleadings filed herein no right of action was alleged or asserted against these movents, although tbe judgment referred to allows tbe said E. J. Wellons and wife, Cornelia A. Wellons to recover a large sum of money against these movents and condemns their interest in tbe 22% acres described therein to sale, along with other properties in which they have no interest, to satisfy said alleged claim, and likewise taxed them with the costs.

“5. That movents do not contest the right of plaintiff herein to assert its tax liens against the property referred to in this action, and they stand ready, able and willing to pay all taxes, costs and penalties legally levied and assessed against the 22% acres of land described in said judgment.

“Wherefore, said movents, all of whom are now 21 years of age *sui juris*enter a special appearance herein and move the court to vacate and set aside said judgment and all orders and decrees incident thereto, including a purported commissioner’s deed, and to remove the same from the judgment roll of this court.

“This the 12th day of September, 1945.

LeviNsoN, Pool & Batton, *Attorneys for Movents."*

This was resisted by E. J. Wellons and wife by demurrer:

“E. J. Wellons and wife, Cornelia A.- Wellons, demur to Motion of Kenneth Ellis, Wilson Ellis, Milton Ellis, Alma Price and William Ellis for that the same does not state any cause of action:

“1. For that the said motion shows on its face that the said movents were named as parties to said action.

“2. That the said motion shows on its face that the Court recognized said movents as properly before the Court and rendered judgment thereon.

“3. That the said motion fails to show any meritorious defense or that the said movents have been diligent in making the same.

“Wherefore, the said respondents pray that the motion be denied.

“This September 26, 1945.

LeoN G. SteveNS, *Attorney for Respondents.”*

*274On 21 September, 1945, the matter was heard before II. Y. Rose, clerk of the Superior Court, upon the record and evidence taken. Thereupon the clerk entered judgment reciting a history of the case and making findings of fact, adjudged that the petitioners had not been before the court in a legal sense; that the mortgage foreclosure procedure was entirely foreign to the cause of action upon which the suit was originally instituted, and that the deeds of Wellons and wife, Cornelia A. Wellons, for the 22% acres of land described in the proceedings were ineffectual to pass title as against the minor petitioners who now appear in the cause. The judgment provides for an adjustment as to the taxes paid by Wellons and wife on the 22% acre tract since 1927, and that they were entitled to “collect out of said lands the amount of the note and mortgage they purchased from L. G-. Stevens, together with interest on the taxes and the amount due upon the note and mortgage and for all improvements they have made on the lands”; but requiring them to render an account to the petitioners for reasonable annual rent, since they have been in possession thereof.

From this judgment E. J. Wellons and wife, Mrs. Cornelia A. Wellons, excepted and appealed.

The matter came on for hearing before Judge Carr at the November Term, 1945, of Johnston County Superior Court, and upon an order that an amended motion be filed by movents, the matter was set for further hearing at December Term, 1945.

The amended motion and the answer thereto did not materially change the aspect of the controversy, and are consistent with the foregoing statement of the case. However, the further defense in the answer to the amended motion avers that the movents were properly represented by a next friend in the mortgage foreclosure proceeding; that the motion fails to show meritorious defense; that the movents have not been diligent in attacking the proceedings; wherefore, the respondents specifically plead laches; and the respondents plead the three year statute of limitations as set out in G-. S., 1-17, as a bar to the motion.

At this hearing the birth dates of the several children of J. R. Ellis were ascertained to be as follows: Joseph A. Ellis, 1908; Gladys Helen Ellis, 4 February, 1909; Walter Larry Ellis, 16 October, 1910 (dead); Katie Lee Ellis, 4 November, 1912; William Jackson Ellis, 4 August, 1914; Rufus Wilson Ellis, 20 October, 1916; Milton Yick Ellis, 5 September, 1918; Elmer (Alma) Rea Ellis, 10 January, 1921; Riley K. (Kenneth) Ellis, 21 October, 1923. Of these Kenneth Ellis, Wilson Ellis, Milton Ellis, Alma Ellis Price and William J. Ellis are petitioners and present appellants.

The parties stipulated “that the hearing Judge might take the record of the case and' render judgment out of term and out of the county and *275■district at tbe convenience of tbe court.” On 4 January following, Judge Carr rendered tbe following judgment:

“Tbis cause came on to be beard and was beard by tbe undersigned Judge of tbe Superior Court at tbe December Term, 1945, of tbe Superior Court of Jobnston County upon an appeal by E. J. 'Wellons and wife, Cornelia A. Wellons, from a judgment of H. Y. Rose, Clerk of tbe Superior Court of Jobnston County, bearing date of November 3, 1945, wbicb appears in tbe record. After tbe Court bad beard argument of counsel it was agreed by counsel for all parties tbat tbe Court might take tbe record in tbe case and render judgment out of term and out of tbe County and District and at tbe convenience of tbe Court.

“Upon an examination of tbe record tbe Court is of tbe opinion tbat H. Y. Rose, Clerk of tbe Superior Court of Jobnston County, bad jurisdiction of tbe parties and tbe subject matter referred to in bis judgment in tbis cause dated Monday, June 3, 1935, and tbat, therefore, tbe said judgment is not void. Tbe Court is of tbe opinion tbat tbe said judgment is irregular in respect to tbat part of said judgment wbicb adjudges tbat Kenneth Ellis, Wilson Ellis, Milton Ellis and William J. Ellis, are indebted to Cornelia A. Wellons in any sum whatsoever, inasmuch as it does not appear tbat there were any pleadings upon wbicb such judgment could have been rendered. It is, therefore, Obdebed akd Adjudged tbat such part of said judgment as directs a recovery of any judgment against any one of tbe aforesaid parties is hereby set aside and declared invalid.

“It is tbe opinion of tbe Court tbat if tbe remainder of tbe said judgment which adjudges tbe amount due on tbe mortgage and tax lien referred to in said judgment and orders a sale of said property for tbe purpose of satisfying said liens is irregular tbe movents, Kenneth Ellis, Wilson Ellis, Milton Ellis, Alma Ellis Price, and William J. Ellis, have not shown tbat they were prejudiced by tbe entry of said judgment or tbat they bad a meritorious defense to tbe cause of action with respect to wbicb tbe said judgment was entered.

“It is, therefore, accordingly Obdebed AND Adjudged tbat such part of tbe judgment of tbe said H. Y. Rose, Clerk, bearing date of Monday, June 3, 1935, which adjudges tbe amounts due on tbe mortgage and tax lien referred to in said judgment and wbicb directs a sale of tbe property described therein is valid and tbe deed from James R. Pool, Commissioner, to E. J. Wellons and wife, Cornelia A. Wellons, conveying said property is likewise valid. Tbe judgment of tbe said H. Y. Rose, Clerk, bearing date of November 3, 1945, is, therefore, modified to conform to tbis judgment.

*276“Let tbe defendants, E. J. Wellons and wife, Cornelia A. Wellons, pay tbe cost of tbis motion.

“Tbis 4tb day of January, 1946.

Leo Carr, *Judge Presiding.”*

From tbis judgment tbe movents excepted and appealed, assigning as error tbe setting aside of tbe judgment of tbe clerk and tbe signing of tbe judgment bearing date of 4 January, 1946. Defendants, E. J. Wellons and wife, Cornelia A. Wellons, excepted to that part of tbe judgment wbicb is adverse to them, but did not bring up an appeal.

*Levinson, Pool & Batton for movents, appellants.*

*Leon G. Stevens for respondents, appellees.*

Seawell, J.

On tbe facts of record tbe judgment of tbe court below bolding valid and binding upon tbe appellants tbe judgment and commissioner’s deed in tbe mortgage foreclosure proceeding cannot be sustained. Tbe judgment is based on tbe theory that tbe foreclosure judgment attacked by tbe appellants, if defective at all, was at most merely irregular, and that tbe movents bad shown no meritorious defense in their application to vacate it. We have tbe impression, however, that tbe defects of wbicb appellants complain go to tbe jurisdiction: (a) Want of jurisdiction in tbe court to entertain tbe mortgage foreclosure proceeding within tbe frame of tbe tax suit, either while tbe latter was pending or after that controversy bad ended; (b) want of legal representation of tbe minor children of J. E. Ellis, equitable owners of tbe land, when tbe foreclosure judgment was taken, or during any part of that proceeding; and (e) want of jurisdiction on tbe part of tbe clerk to render a default judgment upon tbe “interplea” or affidavits, documents and other evidence made tbe basis for tbe judgment for debt, and to adjudge the incidental foreclosure of tbe mortgage securing it.

Appellants’ first objection applies to tbe court as one of general jurisdiction without reference to tbe limited jurisdiction of tbe clerk discussed *infra.*Tbe appellants contend that tbe court bad no inherent power to bring into an existing suit an independent cause of action, unrelated in any way to that stated in tbe complaint or to tbe relief sought in tbe original action, unnecessary to its investigation and determination, and raising issues only between defendants or parties called in adversely to answer or defend rights wbicb might be affected by tbe original suit; or, in other words, to entertain a separate controversy exclusively between tbe defendants wbicb, however justifiable in an independent action, bad nothing to do with tbe plaintiff or its cause of action; in tbe case at bar, a mortgage foreclosure proceeding between *277parties called in to protect tbeir rights, if any, against the county’s claim for taxes.

Objection to the power of the trial court to entertain the mortgage foreclosure suit within its already occupied jurisdiction in the tax suit must, under the facts of this case, be regarded as meritorious. The new cause of action has no relation to that to which the jurisdiction of the court had attached, nor was it necessary to its judicial determination; it was a mere episode between codefendants. *Schnepp v. Richardson,*222 N. C., 228, 22 S. E. (2d), 555; *Wingler v. Miller,*221 N. C., 137, 19 S. E. (2d), 247; *Clendenin v. Turner,*96 N. C., 416, 2 S. E., 51; *Richards v. Smith,*98 N. C., 509, 4 S. E., 625. Most of the cited cases were normal in incident, and the question was presented upon demurrer. *Won constat*that without demurrer, departure from the course of the court may not, under given circumstances, be so great or so grave as to constitute a fatal defect in jurisdiction. The court cannot by mere tolerance create within itself a jurisdiction which it has not orderly acquired. The familiar principle that parties, by common consent, may submit to the court a cause of action of which it has jurisdiction and which is properly pleaded has no application here. The following circumstances attending the progress of the case at bar deprives the situation before us of such plausibility: In the instant case there was no consent asked or given for the radical change in subject and parties which demanded the attention of the court and partnership with the tax suit in its jurisdiction. There was no amendment to the original complaint or any order respecting the new and independent cause of action outside of the inferential recognition it may have received in the judgments to which? exception has been taken. There was no notice given to any interested person of this unpredictable development, although it occurred out of term; and there was no legal duty resting upon any interested party to take notice of any proceeding which might reconstitute the case or justify the presence of appellants therein in their new role. McIntosh, Civil Procedure, sec. 493. The question is whether the attempted admission of the would-be litigant and his independent cause of action into the already occupied forum, thus entertaining two separate lawsuits at the same time, and within the same procedural frame, did not over-saturate the jurisdiction of the court and result in a void judgment. "Without further elaboration and confining our observation to the facts of the case at bar, we are of opinion that the judgment under review was so contrary to the course of the court as to render- it invalid.

The record might be construed as indicating that the controversy over the delinquent tax had ended with the judgment setting aside all former orders and canceling the commissioner’s deed before the mortgage proceeding got under way, since the tax had been paid and the purchaser at *278the tax sale elected to recover it from these petitioners rather than from the County of Johnston. In that event, the plight of appellants would be no better because of a want of anything having the semblance of a pleading on their part, and the lack of representation of the minors in that anomalous proceeding.

To sustain the validity of the foreclosure judgment, appellees rely upon representation of the minors by their next friend, Joe Ellis, to bring them into court, and upon his express consent or the consent implied through some failure on his part to perform a duty of defense imposed upon him by law. The Court is of the opinion that Ellis as next friend could give no consent, and that no implication arises of a consent which he was not capable of giving. Even if his powers and duties as next friend had been comparable to those of a guardian *ad litem,*—which they were not — he would have had no power to consent to a judgment of this kind without special authority of the court; *Butler v. Winston,*223 N. C., 421, 425, 27 S. E. (2d), 124; and the judgment would have been invalid without it; but his office as next friend of his minor suitors did not extend to their general defense. There is, we are aware, a lack of uniformity in judicial decision in the several jurisdictions respecting the duties and authority of a next friend and the extent of his representation. These differences are largely due to the variation in pertinent statutes of the particular jurisdiction. We think it essential to orderly procedure, and to the better protection of the rights of infants' and others *non sui juris,*to adhere to the distinctions between next friends and guardians *ad litem*or general guardians traditional in our practice and formally recognized and implied in our statutes: G. S., 1-64; G. S., 1-65 to 1-67. McIntosh, Civil Procedure, p$. 237-238, sees. 253-254. These distinctions stem mainly from the circumstance that a next friend is appointed to bring or prosecute some proceeding in which the infant suitor is plaintiff, or at least where some right is positively asserted; while a guardian *ad litem*is appointed to defend. In legal effect, the distinctions are substantial and not merely formal.

A next friend is not an all-time and all-purpose representative through whose action or failure to act his infant suitors may be bound by orders and judgments which have no connection with the purpose of his appointment, or the rights of the minors which by virtue of such appointment it is his office to assert. The scope of his representation lies within and is determined by that purpose, the necessities of its prosecution and the procedure reasonably incident thereto. In 27 Am. Jur., p. 839, sec. 118, is a summarized expression of the law as we conceive it to be here: “The next friend has full power to act for the purpose of securing the infant’s rights, and may do all things that are necessary to this end, although his power is strictly limited to the performance of the precise *279duty imposed upon him by law.” *Roberts v. Vaughn,*142 Tenn., 316, 219 S. W., 1034, 9 A. L. R., 1528. No doubt in the assertion of such right the next friend may have to defend against incidental or opposing rights, such as offsets, counterclaims, or other defenses or demands connected with the original claim.

The next friend came into the tax suit for the purpose of making a motion to set aside a judgment and annulling a deed in the tax suit, in which the minors were admittedly equitable owners of the property and at the time unrepresented. His appointment did not require him to defend against the foreclosure suit thrust into this proceeding in the manner stated, and his representation of the minors in that matter did not legally exist.

Moreover, the record discloses that Ellis had successfully accomplished his mission as next friend, performed all the duty imposed upon him by law, and his office as next friend had become *functus officio.*If the holder of the mortgage desired to foreclose, it was necessary to do so in an orderly proceeding, instituted for that purpose, and to secure the appointment of a guardian *ad litem*to defend the owners of the equitable estate. The judgment based on the representation and participation of Ellis as next friend is not valid or binding upon appellants.

The jurisdiction of the clerk of the Superior Court is statutory and limited, and can be exercised only with strict observance of the statute. *Beaufort County v. Bishop,*216 N. C., 211, 4 S. E. (2d), 525. Jurisdiction to order foreclosure of mortgages is given to the clerk by G. S., 1-209 (e), in connection with G. S., 1-211, and is an incidental jurisdiction conditioned upon the rendition by the clerk of a judgment by default for the debt secured by the mortgage in favor of the mortgage creditor and against the mortgage debtor. Under the last statute named, the default judgment can be made only upon a failure to answer a verified pleading where the sum due is “capable of being ascertained therefrom by computation.” The judgment under review is not of that character. Its recitals show that the motion for judgment was heard upon oral and documentary evidence, the exhibition of notes and mortgage and of affidavits in the cause. No authority is given the clerk to render a judgment by default where the title to the mortgage debt and the amount thereof must depend upon evidence taken before him, rather than by default in answering an appropriate pleading. The necessity of taking evidence upon the point is apparent from the record, but it is this very necessity that defeats the jurisdiction of the court.

Appellees have pleaded both laches and a statute of limitation, but lapse of time is unavailing against a motion to set aside a void judgment; *Monroe v. Niven,*221 N. C., 362, 365, 20 S. E. (2d), 311.

*280For the reasons stated, we conclude that the judgment in the foreclosure proceeding sought to be vacated by petitioners is void and of no effect, and the commissioner’s deed made in pursuance thereof is invalid. The judgment of Judge Carr, rendered as of December Term, 1945, except in so far as it relieves these appellants of the debt adjudged against them, is reversed. The scope of our review does not permit us to map out for the parties such remedies as they might have in an appropriate proceeding.

Judgment reversed.