Federal Land Bank of Columbia v. Davis

• Decision Date: 01 March 1939
• Docket Number: 31.
• Citation: 1 S.E.2d 350,215 N.C. 100
• Parties: FEDERAL LAND BANK OF COLUMBIA v. DAVIS et al.
• Court: North Carolina Supreme Court

1 S.E.2d 350

215 N.C. 100

FEDERAL LAND BANK OF COLUMBIA v. DAVIS et al.

No. 31.

Supreme Court of North Carolina

March 1, 1939

This is a motion in the cause after judgment in the original action which was an action instituted for the foreclosure of a mortgage.

The defendant T. E. Davis on December 19, 1925, executed to the plaintiff a mortgage to secure the payment of $6,000. To the particular description of the land conveyed by said mortgage the following clause was added: "And being the identical land conveyed to T. E. Davis by two deeds, one of which is from J. E. Marshall and others, recorded in the office of the Register of Deeds of Stokes County, North Carolina, in book 48, page 348, dated April 2, 1906; and the other is from D P. Mast, Commissioner, dated July 1, 1893, recorded in the above named office in Book 34, pages 591-2-3, to which reference is hereunto made." The said Marshall deed to Davis on its face expressly excepts therefrom "the coal and mineral interests in said land." After execution and recordation of the mortgage T. E. Davis, the mortgagor conveyed the Marshall tract containing 122 1/2 acres to the defendants W. H. Davis and wife for life, with remainder to their three named children, by deed dated March 26, 1932.

The defendants failed to answer the complaint filed in the original action and there was a judgment by default final decreeing foreclosure. This judgment describes the lands to be sold in the identical language of the description contained in the mortgage. It contains the further provision "that upon the sale of the said premises all the right title, interest and equity of redemption of the defendants (naming all defendants) as well as all persons whomsoever claiming by, through, or under the same in and to the premises, or any part thereof, herein ordered to be sold, be, and the same hereby are forever barred and foreclosed." There is likewise a provision in the judgment that upon the consummation of the sale the commissioner shall make deed to the purchaser in fee.

After the issuance of a writ of possession or writ of assistance the defendant W. H. Davis, who now claims to own the coal and mineral rights in said land which were excepted by Marshall and others in their deed to T. E. Davis, appeared and moved the court that the description contained in the judgment of foreclosure be amended so as to expressly except the coal and mineral interests contained in that portion of the land ordered sold which was acquired under the Marshall deed. Said defendant likewise filed an affidavit and motion to correct the judgment by striking out the clause providing that all right, title and interest of equity of redemption should be forever foreclosed or by so amending the same as to clearly indicate that the defendants are foreclosed as to the Marshall tract only as to the interest in said land acquired by T. E. Davis under the Marshall deed, which excepted the coal and mineral interests. The defendant bases his motion upon the contention that the alleged defects in the judgment are matters of clerical error arising out of the fact that in tendering judgment the plaintiff used a printed form, not adapted to the particular facts in this case, without striking out the provisions thereof which were inapplicable.

The motion came on to be heard before the court below. After hearing the same the judge denied the motion of the defendant and entered decree adjudging as a matter of law, upon the facts found, that the description contained in the mortgage and in the judgment of foreclosure includes all mineral and surface rights in the lands in question. He further adjudged that the movant is estopped and precluded by said judgment from asserting any claim in or to mineral or other rights in said lands, and that there was no clerical error in entering said judgment. The court likewise dismissed said defendant's appeal from the clerk's order allowing plaintiff's application and motion for a writ of assistance, which appeal was then pending. The movants excepted and appealed.

S. E. Hall and Parrish & Deal, all of Winston-Salem, for appellants.

Ingle, Rucker & Ingle, of Winston-Salem, for appellee.

BARNHILL Justice.

This appeal presents three questions for determination: (1) May a defendant against whom there has been a judgment by default final thereafter by motion in the cause have clerical errors in the judgment corrected? (2) May such defendant by motion after judgment by default final require the judgment to be modified by striking out provisions therein which are in excess of the relief to which the plaintiff is entitled upon the facts alleged? And (3), may it be adjudicated on a motion filed after judgment by default final that the description contained in the mortgage and in the judgment of foreclosure, is or is not sufficient to embrace and convey all interest in the land, including mineral rights?

The rule that a judgment is in fieri during the term only and cannot be altered after adjournment relates to judicial and not to clerical errors therein. After rendition of final judgment the cause is still pending in certain respects until the judgment is satisfied. Motions affecting the judgment,...