Den on Dem. of Purcell v. Tryon McFarland's Heirs, 23 N.C. 34, 1 Ired. 34 (1840)

June 1840 · Supreme Court of North Carolina

23 N.C. 34, 1 Ired. 34

DEN ON DEM. OF JOHN PURCELL vs. TRYON McFARLAND’S HEIRS.

Where the Clerk of a Superior Court has omitted to affix the seal of his court to writs offi. fa. and venditioni exponas issued out oí the county, the court may, at a subsequent term, order the clerk to affix its seal to the said executions nunc pro time, in order to protect a purchaser of the land sold under them, where no third person claiming under one of the parties to the execution is to be affected thereby.

Upon a judgment obtained in the Superior Court of Robeson county, against one John McFarland, a writ of fieri facias was issued, directed to the Sheriff of Richmond county, and was by him levied on the land in question, as the property of the said John McFarland. The fieri facias was returned, and a writ of venditioni exponas issued, under which the land was sold, when John Purcell became the purchaser, and received a deed from the sheriff for it. An action was then brought in the county of Richmond, by the purchaser, to recover the possession of the land from the heirs of one Tryon McFarland. On the trial of that suit, an objection was taken that the clerk, who issued the writs under which the land had been levied upon and sold, had neglected to affix the seal of the court to them; whereupon the plaintiff was nonsuited; but the nonsuit was afterwards set aside and a new trial granted, in 'order to give the plaintiff an opportunity, if he could, to supply the defect. He accordingly made a motion, founded upon an affidavit stating the facts, in the Superior Court of Robeson, at the Spring Term 1840, before his honor Judge Bailey, that the clerk should affix the seal of the said court to the executions nunc pro tunc. The motion was resisted, and his Honor being of opinion that he had no power to make the amendment, overruled the motion. It was then placed on the record, and the plaintiff appealed.

No counsel appeared for either party in this Court.

Daniel, Judge,

after stating the case as above, proceeded as follows: The case comes before us upon the single point, whether the Superior Court of Robeson county had the power, at the time the motion was made, to amend the executions by affixing the seal of the court to them. We are of the opinion that the court had the power. The omission of the clerk to affix the seal to the executions, was but a misprision in him. At common law, the court on motion will, while the pleadings are in paper, and before they are entered of record, permit amendments in form or substance, on proper and equitable terms. But when the proceedings are entered on record, the court will not amend further than is allowable by the statutes of amendments. In this State, as in. England, judicial writs are seldom ever recorded, so that while they are but on the file, the common law rule as to amendments are as properly applicable to them as to the pleadings in a cause whilst they remained in paper. Bing, on Judgments 72; Bing, on Execut’s. 189. In England, writs of ca. sa. andyi. fa. must be signed as well as sealed. When third persons, who derive title from one of the parties, are not affected, executions may be amended by adding or altering the teste or return. Tidd. 986,1027. 1 Marsh. Rep. 399. 5 East. 291. Bing, on Exect’ns. 190. Such amendment was authorised to be made by a decision of this Court, in Smith v. Daniel, 3 Murp. 128. And we think, with Judge Henderson, that an amendment is a matter of course, as to the affixing the seal to the executions, when they have been omitted by the negligence or ignorance of the clerk, and no third person claiming under one of the parties to the execution is affected thereby. Seawell v. Bank of Cafe Fear, 3 Dev. Rep. 284. We know that executions may be amended after they have been acted on, so as to render them a justification to the officer, when otherwise they would not be. Bender v. Askew, 3 Dev. Rep. 151, and the authorities then cited. Then why not amend by affixing the seal to protect a bona fide purchaser? We think that the judgment must be reversed; and this opinion must be certified to the Superior Court of Robeson, with directions to proceed upon the motion ac'cording to its sound discretion.

Per Curiam.. Judgment reversed.