Summary
In Jones v. Lewis, 30 N.C. 70, which soon followed the other two cases and cited them, it appeared that executions issued and were, by the sheriff, levied on the undivided interests of John C. and Altas Jones in the premises, which consisted of several tracts.
Summary of this case from Williams v. DunnOpinion
(December Term, 1847.)
1. A court of record has a discretionary right to amend its records at any time, nunc pro tunc, and it is the duty of the clerk not simply to enter such order of amendment but actually to make the amendment, as directed by the court.
2. The law points out no specific mode in which a sheriff shall conduct his sales on executions, but he is bound by general principles to sell the property levied on in such a way as will probably raise the most money.
3. Where a sheriff had an execution against two persons, each owning an undivided fifth part of a tract of land, and he sold both their interests at one bid: Held, that this sale was not void in law, but, if objected to, should have been left to a jury to determine, as a matter of fact, whether the sale was properly conducted or not.
4. Where a deed from a husband and wife for the real estate of the wife had on it only the following certificate from the Clerk of the County Court as to its execution, to wit: "The private examination of H. J., wife of J. C. J., taken by Charles A. Hill, a member of the Court, which being satisfactory, it is ordered to be recorded," and signed "C. A. Hill, J. P.," and a proof of the execution of the deed by the subscribing witness and an order of registration: Held, that the interest of the wife in the lands did not pass.
APPEAL from the Superior Court of Law of FRANKLIN, at Fall Term, 1847, Battle, J., presiding.
(72) No counsel for plaintiffs in this Court.
W. H. Haywood, G. W. Haywood and H. W. Miller for defendant.
The plaintiff's case, as alleged, is as follows: Hixie Jones died in 1823, seized and possessed of the premises in dispute, leaving five children, to wit: Willie Jones, Lydia Witcher, Eliza Jones, John C. Jones and Atlas Jones. He claims three undivided fifth parts as lessee of the three first-named children, and two undivided fifth parts as lessee of Jesse Person. To show and make out the title of Jesse Person, the plaintiff gave in evidence the transcripts of several judgments in the (71) County Court of Franklin at the instance of several persons against John C. Jones, and the transcripts of several judgments in favor of several plaintiffs against Atlas Jones. All of these judgments were rendered on attachments but one against John C. Jones. Executions issued and were, by the sheriff, levied on the undivided interests of John C. and Atlas Jones in the premises, which consisted of several tracts. The land was sold under all the executions, and at the sale each tract was set up separately, and the interest of the defendant sold in it at one bid. Jesse Person was the purchaser, and to him the sheriff executed a deed.
The judgments upon all the attachments were taken by default, and in all but two against John C. Jones and one against Atlas, the attachments pointed out no time or place for the appearance of the defendants. And after the institution of this suit the County Court amended the attachments so as to make them regular. The defendant also claimed title to the premises by a conveyance from Hixie Jones and her husband, James C. Jones, who died in January, 1844. This deed was offered in evidence, and upon it is the following endorsement: "The private examination of Hixie Jones, wife of James C. Jones, taken by Charles A. Hill, a member of the Court, which being satisfactory, it is ordered to be recorded; signed, C. A. Hill, J. P. March Term, 1823, Court of Pleas and Quarter Sessions." After this, but at the same term of the Court, is the clerk's certificate of the probate of the deed, by William Arendel, one of the subscribing witnesses, and an order of registration. The defendant objected that the attachments were void by reason of the defects already mentioned, and also that the sales under the attachments were not regular. Under the charge of the Court the jury found a verdict for the plaintiffs, and the defendant appealed.
The objection cannot avail the defendant. We have been so repeatedly called on to express our opinion upon this subject that we had hoped it would have been well known to the profession. The language of the Court in S. v. King, 27 N.C. 204, is emphatic — "the power resides in every Court to amend the entry on its minutes, or the records of its orders and judgments, nunc pro tunc, and that no Court could incidentally question the verity of the record as amended." When the amendment is ordered it is the duty of the clerk to obey the order, not by entering it on the record to be amended, but altering the record itself, so as to answer to the amendment, and, when so amended, it stands as if it never had been defective. When, therefore, the clerk gives a transcript of the record it must be so amended, exclusive of the order; and if he sets forth in the transcript when and how he altered it, it is surplusage, being no part of that record. We must take the record to be as it is certified to us by the proper officer; we are not at liberty to look beyond it to inquire how it came to be as it is. Galloway v. McKeethan, 27 N.C. 12.
The second objection is that the interest of John C. and Atlas Jones in the land were sold at one bid, instead of being sold separately. There is no allegation of fraud in the transaction, nor is there any complaint on the part of the owners of the land that their interests have been injured by the mode pursued. We admit it is unusual, but we do not see that it is therefore contrary to law. The law points out no specific mode in which a sheriff shall conduct the sale, but he is bound, by general principles, to sell the property levied on in such way as will probably raise the most money. The office of sheriff is a highly responsible one, and much discretion must, in many cases, be allowed him. In this case John C. and Atlas (73) Jones were owners of two undivided fifths of the lands sold; it might have been beneficial to them to have their respective interest sold by the same bid; the land thereby might have produced more. But this was a question of fact which, if pertinent to the case, ought to have been submitted to the jury, and we cannot say, as a matter of law, that the sale, for that case, is absolutely void. After the sale the owners were each entitled to one-half of the proceeds, and it was the duty of the sheriff to have applied the money to the executions accordingly. Wilson v. Twitty, 10 N.C. 44; Thompson v. Hodges, ib., 51; Davis v. Abbott, 25 N.C. 139. It is admitted by the defense that the land was liable to be sold under the executions, the objections to the amendment of the attachments and the one we are now considering being removed. The owners of the land do not complain, and the purchaser is seeking to enforce his rights under it.
This brings us to the last objection made by the defendant to the plaintiff's right of recovery. He alleges the title to be in himself, and, to prove it, produced on the trial a deed from Hixie Jones and her husband, James C. Jones, to one Harrison, under whom he claims. It is admitted that without a private examination of a feme covert had in one of the modes pointed out by the act of the General Assembly, her deed conveys no estate in her lands. In Burgess v. Wilson, 13 N.C. 306, the manner in which, in every case, the private examination is to be conducted is so fully and distinctly pointed out that we content ourselves by referring to it. The very point we are now called on to decide is settled in that case, that when the wife is capable of attending Court the deed shall be acknowledged by both husband and wife in Court, and then the wife be privily examined by some one of that Court. In the case before us Mrs. Jones was present, but there was no acknowledgement of the execution of the deed in Court, either by her or her husband. (74) Nor, indeed, as far as the certificates or the conveyance show, does it appear she ever has legally acknowledged the execution of the deed or been privily examined as required. Lucas v. Cobb, 18 N.C. 228. It is void, and conveyed to Harrison no estate in the land, and the defendant's claim under it is of no avail.
PER CURIAM. Judgment affirmed.
Cited: Freeman v. Morris, 44 N.C. 289; Bevan v. Bird, 48 N.C. 398; McDowell v. McDowell, 92 N.C. 230; McCanless v. Flinchum, 98 N.C. 364.