32 S.E.2d 602 | N.C. | 1945
Motion in the cause by Zimp Leggett and wife, purchasers at partition sale, to correct and amend the record.
This was a special proceeding before the clerk to sell for partition the real property of H. J. Leggett, deceased. Plaintiffs and defendants are his heirs at law. Two tracts of land were described by metes and bounds in the petition and by amended petition the purpose was declared that all the real property of decedent should be sold. All the defendants were duly made parties and answered admitting the allegations of the petition and amended petition. Decree of sale was entered and commissioners appointed for that purpose. At the sale it was announced by one of the commissioners conducting the sale that the lands offered included the fish pond or mill pond, and that this was a material element of value in the sale, worth $1,500 or $2,000. The lands were bid off by Ricks Leggett, one of defendants, at the price of $4,550, and the bid transferred by him to the movents Zimp Leggett and wife. Deed was in due course made by the commissioners to the movents reciting, "It is the intention of this instrument to convey unto said parties of the second part all the lands owned by and in possession of H. J. Leggett at the time of his death." Distribution was made of the proceeds of sale and each of the parties accepted his or her proportionate share with knowledge that it was the purpose of the parties and the commissioners to sell all the lands of decedent.
Subsequently it was learned that a small parcel of land 1.3 acres covering a part of the fish pond or mill pond apparently was not embraced in the specific description of the lands in the petition. Defendants Ricks Leggett and Wilbur Leggett procured a quitclaim deed, without valuable consideration, and with notice of the rights of movents, *808 "from several of the other parties to this proceeding," and had same registered.
Thereupon the movents Zimp Leggett and wife, purchasers at the sale, moved in the cause before the clerk that the record be amended to show and declare that the mill pond was included in the lands purchased at the sale. After notice to respondents, all the parties being before the court, the clerk found the facts as above set out, and, in addition, that it was the intention of all parties and of the commissioners that all the lands of H. J. Leggett be included in the sale; that the parties understood the lands described and being sold embraced the 1.3 acres, and it was so announced by the commissioner conducting the sale, and bid off by Ricks Leggett and purchased by movents with that understanding; and that with this knowledge the proceeds of sale were received by the parties; that Ricks Leggett and Wilbur Leggett are the only respondents who resist movents' motion. These findings were made from the record and the testimony of the witnesses, including that of the appellant Ricks Leggett. There was no testimonycontra.
Upon these findings it was decreed by the clerk that the petition and records of this proceeding be corrected to include the 1.3 acres by metes and bounds as a part of the lands owned by H. J. Leggett at the time of his death, and the commissioners directed to execute deed accordingly.
The defendants excepted and appealed to the judge of the Superior Court. The judge overruled defendants' exceptions, and adopted the findings and conclusions of the clerk and made them the findings and conclusions of the Superior Court. The execution of the judgment of the clerk was ordered to proceed.
Defendants excepted and appealed to this Court. The defendants' appeal from the judgment below was based solely upon the ground that the judgment of the clerk of the Superior Court was void for want of authority, and that its affirmance by the judge could not give it life. It was contended that the motion of the appellees was to correct the record so as to include 1.3 acres of land omitted from the petition and orders by mistake, and that the findings of fact made out a case which required the aid of an equity which the clerk was without power to administer.
It is true the clerk has only such jurisdiction as is given by statute,Moore v. Moore, ante, 552; Beaufort County v. Bishop,
Where the clerk exceeds his authority, Hodges v. Lipscomb,
In the case at bar the matter was properly presented by a motion in the cause by the purchaser at the partition sale. Wilson, Ex Parte, supra. The facts were not controverted. Manifestly it was the intention of all the parties that all the lands of decedent be included in the sale. By mistake a tract of 1.3 acres covering a part of the mill pond was omitted from the specific description in the petition. However, it was announced at the sale that this was included in the lands being sold, and upon that statement the purchase was made by the appellant Ricks Leggett, and with that knowledge the bid was transferred and deed made to the movents and consideration paid. With that knowledge proceeds of the sale were received by all the parties, including the appellants. *810
While the defendants excepted generally to the clerk's findings of fact, no objection to any specific finding was noted. This was insufficient.Sturtevant v. Cotton Mills,
The power of the court to permit amendment is expressly conferred by G. S., 1-163: "The judge or court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process or proceeding, by adding or striking out the name of any party; by correcting a mistake in the name of a party, or a mistake in other respect; by inserting other allegations material to the case; or when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the fact proved." Hicks v. Nivens,
In the absence of showing that the rights of innocent third persons would be injuriously affected, the amendment relates back to the commencement of the action. Lee v. Hoff,
Upon another ground we think the judgment below should be upheld. The appellant, who purchased the land at the sale under the commissioner's announcement that it included 1.3 acres and transferred his bid to the movents with that understanding, was equitably estopped to challenge the ruling of the court, as was also the other appellant who likewise was a party to the sale and a recipient of its benefits. A party who participated in the sale of property in which he had an interest and who stood by while it was announced that the property being sold included a certain material element, thereby inducing another to purchase, and who *811
accepted the benefit of the sale, may not be permitted thereafter to take an inconsistent position to the injury of the purchaser, or be heard to resist the motion to amend. 19 Am. Jur., 640, et seq.; Textile Corp. v.Hood,
With the petition in this proceeding amended so as to supply an omission, in accordance with the manifest intention of all parties, there was no question that the court had the inherent power to amend its decree to conform thereto. Cheshire v. Church,
The result below seems to have been in accord with well considered principles of equity and justice, and will not be disturbed.
Affirmed.