Batts v. Pridgen, 147 N.C. 133 (1908)

March 18, 1908 · Supreme Court of North Carolina

147 N.C. 133

JOHN R. BATTS and wife v. W. H. PRIDGEN et al.

(Filed 18 March, 1908).

Processioning — Clerk—Judgment—Appeal—Superior Court — Entire Case.

When it appears that after judgment by the Clerk in proceedings for processioning an appeal has been taken, it is proper for the Judge below to permit others having an interest in the locus in quo to come in as parties, upon motion, as the appeal carried the entire case into the Superior Court (Revisal, sec. 614), and the registration of deeds under which they claim after the proceedings had commenced does not affect the question.

ActioN tried before Neal, J., at November Term, 1907, of Nash.

This is a proceeding under tbe statute, commenced before the Clerk of the Court, for processioning the lands of the parties and ascertaining the true boundary lines. John L. Bailey is one of the defendants. Before the commencement of the proceeding he contracted to sell his tract of land to A. B. Robbins for $375, of which sum, it is alleged in the affidavit of the appellee, Bettie Bailey, $175 was paid in cash. The contract of sale was in writing, but was not registered until this proceeding was instituted, though A. B. Robbins took possession of the land and was in possession until after the commencement of this proceeding. The land was sold under the provisions of that contract by order of the court, and bought by John L. Bailey, who received a deed from the commissioner appointed by the court to sell the land, and then conveyed it to Bettie Bailey, wife of Robert Bailey, for $325. John L. Bailey had previously purchased the land under an order of sale in a suit to foreclose a mortgage made by John L. Mann to John L. Bailey & Co.,- and a deed had been executed by the commissioner to him. The contract and deeds above mentioned were not registered until after this proceeding was brought.

The defendants in this proceeding not having answered, the' Clerk, on 30 June, 1905, gave judgment for tbe petitioners, and tbe defendants appealed. Tbe cause was docketed in tbe Superior Court and pended therein for two years, without any objection on tbe part of tbe petitioners, when, at November Term, 1907, Bettie Bailey and her husband, Robert Bailey, moved that they be made parties to tbe proceeding and allowed to file an answer to tbe petition, tbe said Bettie Bailey having acquired tbe interests of Jobn L. Bailey arid A. B. Robbins in tbe tract of land described in tbe pleadings. A. B. Robbins was not a party to tbe proceeding before tbe Clerk, and never has been made a party to it. Tbe plaintiffs moved to affirm tbe judgment of tbe Clerk. The court granted tbe motion of Robert Bailey and wife, Bettie Bailey, and refused tbe motion of plaintiffs, whereupon tbe latter excepted and appealed.

Jacob Battle for plaintiffs.

F. 8. Spruill for defendants.

Walker, J.,

after stating tbe case: Tbe appeal of tbe defendants carried tbe entire case into the Superior Court, under tbe provisions of tbe act of 1887, cb. 276; Revisal, sec. 614; Clark’s Code (3d Ed.), sec. 255, and notes, at pp. 266 et seq., and that court was then vested with full jurisdiction of it. If it appeared to tbe presiding Judge that Robert and Bettie Bailey, who bad acquired an interest in tbe land described in tbe pleadings, should be made parties, in order that there may be a final determination of tbe matters in controversy upon tbe merits, it was within tbe power of tbe court to permit them to come in and'answer tbe petition, and thereafter to proceed in tbe cause according to tbe statute and tbe course and practice of tbe court. Tbe act of 1887 has been liberally construed, as it is remedial in its nature and was evidently intended to confer ample powers upon tbe Superior Court when it acquired jurisdiction by appeal or otherwise of a case which was originally commenced before tbe Clerk. Tbe statute has been so often construed so as to suppress tbe former mischief and to advance tbe remedy that it seems necessary only to cite tbe cases in order to support tbe ruling of tbe court below. Ledbetter v. Pinner, 120 N. C., 455; Faison v. Williams, 121 N. C., 152; Lictie v. Chappell, 111 N. C., 347; In re Anderson, 132 N. C., 243; Roseman v. Roseman, 127 N. C., 494; Railroad v. Stewart, 132 N. C., 248; Taylor v. Gooch, 110 N. C., 391; Oldham v. Reiger, 145 N. C., 254. At tbe time tbis proceeding was brought, A. B. Robbins bad ,an interest, if not an estate, in tbe land, under tbe contract with John L. Bailey. It is alleged that be bad paid nearly half of tbe purchase money at that time to Bailey, and was also in tbe actual possession of tbe land. He was at least a proper party to tbe proceeding, and tbe plaintiffs assert title under him as well as under John L. Bailey. However tbis may be, tbe law has conferred jurisdiction upon tbe court in tbe broadest terms to allow amendments and make new parties, in order that cases may be tried upon their real merits and that failure of justice may be prevented. Revisal, secs. 507, 512 and 614; Clark’s Code, secs. 255, 273, 274, and notes. We do not think tbe discretion of tbe Judge was improperly exercised in tbis case. Tbe delay in registering tbe deeds has no bearing upon tbe question involved.

No Error.