35 N.C. 425 | N.C. | 1852
The lessor of the plaintiff claimed title under a sheriff's sale and deed as follows: He produced the record of a suit and recovery in the County Court of Rutherford by Drury Scruggs against Joseph Roach, William H. Green, and Ambrose Roach, at July Term, 1841. The suit began by a warrant before a justice of the peace in favor of Scruggs against Joseph Roach and Green, and on 23 May, 1840, judgment was rendered thereon for $40, with interest thereon from 25 December, 1839, until paid, and 80 cents cost, which was stayed by Ambrose Roach. A fieri facias was issued thereon in January, 1841, which was levied on the premises in dispute as the land of Joseph Roach on 4 May, 1841, and returned to the next county court in July, 1841, and also the copy of a notice to Joseph Roach from the constable of his intention to return the same; and at that term a minute was taken by the clerk that the judgment before the magistrate above recited is readjudged to the plaintiff and confirmed by the court, and the land returned as levied on, condemned and ordered to be sold to satisfy the same, with costs. A venditioni exponas then issued, omitting the name of Green, on which the sheriff returned a sale of the land to Achilles Dreshour for $5, and, subsequently, the plaintiff, by leave of the court, sued out writs of fieri facias, and from time to time, up to November, 1842, for the balance due; and he then took out one against the goods and chattels, lands and tenements of Joseph (427) Roach, Ambrose Roach, and William H. Green, commanding the sheriff to make the sum of $40, with interest thereon from 25 December, 1839, which Drury Scruggs recovered against them, together with the further sum of $3.85; and thereon the sheriff offered the premises again for sale, and they were purchased by the lessor of the plaintiff, which was returned on the writ to February Term, 1842, and the sheriff, afterwards made him a deed. It appeared further from the record that, in entering the judgment at July Term, 1841, the name of William H. Green was omitted as one of the defendants, and that it was afterwards inserted by order of the court, at April, Term, 1842, on the motion of the plaintiff to amend. The defendants then gave in evidence the record of a recovery by Alfred McKinney against the same Joseph Roach, and that under a fi. fa. thereon the defendant became the purchaser of the premises in 1845, and took a deed from the sheriff.
Counsel for the defendant insisted that the plaintiff could not recover,first, because there was no judgment to support the writ of execution under which the lessor of the plaintiff purchased; and, secondly, because of a variance between the judgment, if there by any, and the venditioni *293 exponas in the omission of Green's name as a defendant, and in stating the costs, and in other respects. But the court refused to give instructions on these points in favor of the defendant, and after a verdict and judgment against him, he appealed.
The Court concurs in the opinion of his Honor. According to the loose mode of making entries, which the profession for their own ease tolerate, the courts are obliged to hold, where the judgments are drawn collaterally in question, that the minutes of the clerk stand for the judgment, and that a proper judgment, such as it should be if duly drawn up, is to be presumed. The security of suitors, officers, and (428) purchasers imposes on the courts that rule as an absolute necessity. But even that is not material to the plaintiff's recovery, since he is not obliged to show a judgment at all in this case, much less one to which the execution was in exact conformity, as was held in Rutherford v. Raburn,
The Court concludes, therefore, that the variances insisted on are not material, and would not invalidate the title of the lessor of the plaintiff *295 in fact. However, the most important difference no longer exists, as it was removed by the amendment. It was argued, indeed, against that, also, that it affected rights, and therefore its operation should be accordingly restrained. But the argument must fail, since it goes to the whole power of amendment, as the very necessity for amending arises out of the invalidity of the proceeding unless amended, and every amendment must therefore affect the rights of persons. But it is among the most beneficial powers of courts, intended and usually exercised to further justice and to sustain what has been done under the supposed authority of the law. Every person must be, therefore, understood to act, in such cases as the present, with a knowledge that the courts can and, in cases deemed proper by the, will amend their records and process so as to (431) promote justice as far as they can do so consistently with the truth. Besides, the propriety of an amendment cannot arise collaterally in another court, as the record in the present shape is to be received as conclusively speaking the truth.
No error.
PER CURIAM. No error.
Cited: Marshall v. Fisher,