Pierce v. Mallard, 197 N.C. 679 (1929)

Nov. 13, 1929 · Supreme Court of North Carolina

197 N.C. 679

W. R. PIERCE, Receiver of the CITIZENS BANK OF SHALLOTTE, v. E. F. MALLARD and Wife, BESSIE S. MALLARD, A. W. MALLARD, C. L. WILLIAMS, Receiver of COMMERCIAL NATIONAL BANK, W. E. FUSSELL, C. LEACH, MATTHEW COBB, C. G. BEST, Trustee, and F. R. BRASWELL.

(Filed 13 November, 1929.)

1. Attachment E b — Notice of attachment on realty should he noted on judgment docket and indexed, and filing lis pendens is unnecessary.

C. S., 500 and 807 are to be construed in pari materia, and where notice of levy of attachment on defendant’s land in a county has been given under the provisions of C. S., 807, by certification of the levy to the clerk of the court for that county and his notation thereof on his judgment docket and indexing in the index to judgments the effect is to take the land in custodia lepis, and is not an action affecting the title to lands within the purview of C. S., 600, but from the day of such notice, unless the land is released, the attachment constitutes a lien superior to that of a judgment rendered in favor of another, and a later judgment in the attachment proceedings relates back to the filing and indexing of the attachment, and where such notice under O. S., 807, has been given, the filing of Us pendens in the same county under the provisions of O. S., 600, is unnecessary.

.2. Attachment O b — The trial court may allow minor amendments in attachment proceedings.

In attachment proceedings it is within the discretionary power of the judge of the Superior Court to allow amendments in regard to minor defects.

Appeal by defendant, C. L. Williams, receiver, from Daniels, J., at August Term, 1929, of D'ttpliN.

Affirmed.

A jury trial having been waived by the parties in the court below, the judge found the facts and set them forth in detail:

Material facts. The Citizens Bank of Shallotte brought a civil action against E. F. Mallard, its cashier, in Brunswick County, and in said action caused a warrant of attachment to issue to the sheriff of Duplin County, where-Mallard owned real estate. This warrant of attachment was received by the sheriff of Duplin County on 4 August, 1921, and he made a levy by virtue of the same on 18 August, 1921, on the lands of E. E. Mallard, described in Finding of Fact, and returned said warrant of attachment with his said levy and return to the Superior Court of Brunswick County. That in addition to making the said return to the Superior Court of Brunswick County the sheriff of Duplin County duly certified a copy of his levy and return to the clerk of the Superior Court of Duplin County. The said certificate of return and levy so made by the sheriff of Duplin County was duly docketed and filed in the office of the clerk of the Superior Court of Duplin County on 18 August, 1921, and recorded in Judgment Docket No. 10, at page 181, and duly indexed on the index to judgments in said office on said date. No notice of lis pendens in “Record of Lis Pendens” in Duplin County was ever filed by the plaintiffs, the Citizens Bank of Shallotte, in its action against E. F. Mallard, and being the action in which the warrant of attachment was issued, nor was any lis pendens ever docketed or cross-indexed in said action on the Lis Pendens Docket in the clerk’s office of Duplin County.

The American Bank and Trust Company recovered judgment against E. F. Mallard in the sum of three thousand and ninety-one dollars ($3,091) in the Superior Court of Duplin County on 19 January, 1922, and the said judgment was duly docketed and indexed on said date in the Superior Court of Duplin County. And since the rendition of said judgment tbe defendant, C. L. Williams, as receiver, is now tbe owner of tbe said judgment. Tbe Citizens Bank of Sballotte and W. F. Pierce, wbo was appointed receiver, were made parties to tbe action and recovered judgment against E. F. Mallard in tbe original action in wbicb tbe warrant of attachment was issued a.t tbe October Term, 1923, of Brunswick Superior Court, a transcript of wbicb judgment was duly docketed in tbe Superior Court of Duplin County on 15 October, 1923. Tbe question is as to tbe priority of tbe liens of tbe respective judgments.

On tbe facts found tbe following judgment was rendered: “It is thereupon considered and adjudged, upon tbe foregoing findings of fact, that tbe lien of tbe judgment of W. F. Pierce, receiver of tbe Citizens Bank of Sballotte, against E. F. Mallard, for eighty-six thousand dollars, and interest, and costs, docketed on tbe Judgment Docket of tbe Superior Court of Duplin County, on 15 October, 1923, as hereinbefore set out, relates back to tbe date of tbe docketing of tbe return of tbe sheriff of Duplin County, on tbe warrant of attachment in tbe case of Citizens-Bank of Sballotte v. E. F. Mallard, on tbe Judgment Docket of Duplin' County, to wit, on 18 August, 1921, and that said judgment is a first lien on tbe tracts of land belonging to E. F. Mallard, set out and de* scribed in these findings of fact, and that tbe judgment of American Bank and Trust Company against E. F. Mallard, docketed on tbe Judgment Docket of tbe Superior Court of Duplin County, on 19 January, 1922, for tbe sum of three thousand ninety-one dollars, and interest on $3,000 from 19 January, 1922, and costs, and now owned by O. L. Williams, receiver of American National Bank, be and tbe same is hereby declared a second lien on tbe said lands of E. F. Mallard as herein-before set out, knd subject to tbe lien of tbe judgment of tbe said W. F. Pierce, receiver; as aforesaid, and that tbe defendant, C. L. Williams, receiver, pay tbe costs of this action to be taxed by tbe clerk. F. A. Daniels, Judge.”

To tbe judgment as signed C. L. Williams, receiver, excepted, assigned error and appealed to tbe Supreme Court.

McLean & Stacy and Gavin & Boney for W. F. Pierce, Receiver of the Citizens Panic of Shallotte.

J. O. Carr and Beasley & Stevens for C. L. Williams, Receiver of the Commercial National Bank.

Clarkson, J.

We think there was no substantial irregularity as would make tbe attachment void. It is well settled in this jurisdiction that for minor defects amendments can be made. Askew v. Stevenson, 61 N. C., 288; Best v. Mortgage Co., 128 N. C., 351; May v. Menzies, 186 N. C., 144; Thornburg v. Burton, ante, 193; C. S., 547-9.

The main question involved in the controversy: Should the proceedings in attachment be docketed in the “Becord of Lis Pendens” of Duplin County, C. S., 500, 501, 502, 503? We think not. It was docketed in the clerk’s office of Duplin County in accordance with C. S., 807, in the judgment docket and indexed.

C. S., 500, says: “In an action affecting the title of real property, the plaintiff, at or any time after the time of filing the complaint, or when or any time after a warrant of attachment is issued, or a defendant when he sets up an affirmative cause of action in his answer and demands substantive relief, at or any time after the time of filing his answer, if it is intended to affect real estate, may file with the clerk of each county in which the property is situated a notice of the pendency of the action, containing the names of the parties, the object of the action, and the description of the property in that county affected thereby.”

This section must be construed with O. S., 807, which is under Attachment, in pari materia. A warrant of attachment is not an action “affecting the title to real property.” The warrant of attachment is not an action, but is ancillary and auxiliary to the action. Its function is to seize the property of a defendant and hold it within the grasp of the law until the trial can be had and the rights of the parties determined, or it may be released pending the action if seized without proper cause. In no sense is it a process to bring the defendant into court. It may be issued to accompany the summons, or at any time thereafter. C. S., 802.

The part of C. S., 807, material to be considered in attachments, provides: “He shall levy on the real estate of the defendant as prescribed for executions; he shall make and return with the warrant an inventory of the property seized or levied on. . . . Where the sheriff or other officer levies an attachment upon real estate, he must certify the levy to the clerk of the Superior Court of the county where the land lies, with the names of the parties, and the clerk must note the same on his judgment docket and index it on the index to judgments, and the levy is a lien only from the date of entry by the clerk, except that if it is so docketed and indexed within five days after being made it is a lien from the time it was made.”

As said, the warrant of attachment is not an action affecting the title to the real property. The title of the owner of the land is not brought into dispute. The attachment merely seizes the property and holds it custodia legis until the final determination of the action or until the property is released pending the action when seized without proper cause. All the notice that any one is entitled to in cases where warrants of attachment are issued, is such as is contained in C. S., 807, supra.

The language with reference to warrant of attachment in C. S., 500, we must construe with C. S., 807. The latter requires the levy of a warrant of attachment on real estate to be certified to the clerk of the Superior Court of the county where the land lies, with names of parties, etc., the clerk notes same on the judgment docket. It is then indexed on the index to judgments and the levy then becomes a lien from the date of the entry by the clerk; except that if it is so docketed and indexed within five days after being made it is a lien from the time it was made. It will be noted that in the Consolidated Statutes, under Civil Procedure, Art. 34, Attachment, this provisional remedy of attachment is a complete and orderly system to attach property and hold it until the final determination of the action. A full and complete method is provided to give the public notice when a levy on real estate is made. We do not think that C. S., 500, et seq., made it incumbent to file also a notice of lis pendens in a docket kept in the same office of the clerk of the Superior Court in another book called “Becord of Lis Pendens.” This record of lis pendens is known as the Buncombe County Law, made Statewide, Public Laws 1919, ch. 19. We think the method provided under attachment, C. S., 807, is all that'is required to give notice to the public in attachment proceedings.

It will be noted that section 500, in the first part, speaks of warrant of attachment. The latter part says “If it is intended to affect real estate, may file with the clerk of each county in which the property is situated,” etc. In warrants of attachment we find under C. S., 807, how this notice must be filed and what the clerk shall do to create a lien on the property attached — it must be noted on the judgment docket and indexed. In construing the two sections together, it was never intended that notice should be given under C. S., 807 and then under C. S., 500, et seq., in “Record of Lis Pendens’’ both records kept in the clerk’s office. C. S., 500, was intended to apply to actions affecting title to real property, and the Statewide Buncombe County Law applied to those actions and required them to be docketed and indexed in a book called “Becords of Lis Pendens’’

In Horney v. Price, 189 N. C., at p. 824, we said: “This lis pendens statute applies to ‘an action affecting the title to real property.’ ” At page 825: “Title is the means whereby the owner of lands has the just possession of his property. Co. Litt., 345; 2 Bl. Com., 195; Black’s Law Dic., p. 1157.” The judgment below is

Affirmed.