Opinion
(June Term, 1840.)
Where the clerk of a Superior Court has omitted to affix the seal of his court to writs of fi. fa. and venditioni exponas issued out of the county, the court may, at a subsequent term, order the clerk to affix its seal to the said executions nunc pro tunc, 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 against one John McFarland, a writ of fieri facias was issued, directed to the sheriff of RICHMOND, 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 Tyron 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 Spring Term, 1840, before Bailey, J., 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 for either party.
The case comes before us upon the single point, whether the Superior Court of Robeson 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 (35) 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 pleading in a cause whilst they remained in paper. Bing. Judgments, 72; Bing. Executions, 189. In England, writs of ca. sa. and fi. 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., 399; 5 East, 291; Bing. Executions, 190. Such amendment was authorized to be made by a decision of this Court in Smith v. Daniel, 7 N.C. 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 it has 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, 14 N.C. 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, 14 N.C. 151, and the authorities there cited. Then why not amend by affixing the seal to protect a bona fide purchaser? We think that the judgment must be reversed. The Superior Court of Robeson will proceed upon the motion according to its sound discretion.
PER CURIAM. Reversed.
Cited: Clark v. Hellen, post, 423; Smith v. Spencer, 25 N.C. 262; Freeman v. Morris, 44 N.C. 289; Phillips v. Higdon, ib., 383; Williams v. Sharp, 70 N.C. 584; Henderson v. Graham, 84 N.C. 498; Williams v. Weaver, 101 N.C. 2; Redmond v. Mullenax, 113 N.C. 511; McArter v. Rhea, 122 N.C. 617; Calmes v. Lambert, 153 N.C. 252.
(36)