Phillipse v. Higdon

• Decision Date: 31 August 1853
• Citation: 44 N.C. 380
• Parties: WILLIAM PHILLIPSE, et al., v. LEONARD & SAMUEL HIGDON.
• Court: North Carolina Supreme Court

44 N.C. 380

WILLIAM PHILLIPSE, et al.,

v.LEONARD & SAMUEL HIGDON.

Supreme Court of North Carolina.

August Term, 1853.

Where a Court has power to allow an amendment, the exercise of its discretion cannot be revised by an appellate tribunal. But where a Superior Court allows an amendment without power, the Supreme Court upon appeal will correct the error.

A Court has not power to allow an amendment, by which the rights of persons not parties, will be affected; for example, to amend a fi. fa., so as to make it an alias, and give it relation back, and other like cases. Nor has a Court power, by allowing an amendment, to defeat or evade the provisions of a statute; for example, to allow the sheriff's return of a levy on land to be amended, by inserting a particular description of the premises, required by statute, the original return being defective, and so of the like cases.

The subject of amendments in the pleadings, process and records of Courts discussed, and the principles relating thereto, stated and explained.

(The cases of Quiett v. Boon, 5 Ire., 9; Galloway v. McKeithen, ibid, 12; Bender v. Askew, 3 Dev., 149; Purcell v. McFarland, 1 Ire., 34, and Cape Fear Bank v. Williamson, 3 Ire., 147, cited and approved.)

THIS was a rule against the defendants to show cause why a constable should not be allowed to amend his return of a levy of a Justice's execution on land, returned to the County Court, so as to make the description comply with the requirements of the statute. Upon an appeal from the County to the Superior Court, the case was tried before ELLIS, Judge, at Haywood, on the last Spring Circuit, when the following appeared to be the facts shown by the transcript of the record sent up to this Court:-- “The levy of the constable was endorsed upon a Justice's judgment in the following words:--‘Levied this execution upon Leonard Higdon's land, lying on Carny Fork.’ It appeared that under this levy, after it had been returned to the County Court, and an order of sale obtained, the land was sold by the sheriff, and one John B. Allison became the purchaser, at $115. It appeared also, that one Chasteen had the legal title previously to that time, and had contracted with the defendant, Leonard, for the sale of it, and that the latter had paid the price agreed on, but had not taken a deed when the said levy was made. On the part of the defendants in the rule, it appeared that Samuel, the son of Leonard, had made a contract with his father for the purchase of his interest in said land, and that in pursuance of this agreement, and by the direction of Leonard, the said Chasteen had, after the sheriff's sale, accordingly made title to the land to Samuel.

One Coward testified that the lands were as well identified in said levy, as they would be by a strict compliance with the words of the statute; that no other land adjoined them, except that of the State, known as the ‘Speculation claim,’ covering a large tract of country, and that Leonard Higdon then lived on said land and had no other in the county so far as was then known; that since that time he had seen a deed to him for other lands on Carny Fork, but this was not generally known at the time of the levy. Another witness testified that the land was as well identified in the levy, as it would have been by adopting the words of the statute, and the public generally knew the land in question by the description in the levy. Higdon lived on it at the time, and so far as was generally known, had no other land in the county.

Another witness testified, that as agent of J. B. Allison, he went to the defendant, Leonard, soon after the sale, and told him he might redeem the land by paying what it sold for, or that Allison would buy from him, by increasing the price to what the land was worth. Said Leonard replied, he had not the money with which to redeem the land, and that he must sell it. And it was then agreed between them, that the land was worth $325, which sum the witness paid to him for said Allison, it including the amount bid at the sale. Thereupon said Leonard surrendered the possession to Allison, who conveyed to the plaintiffs; and his deed was exhibited.

It also appeared in evidence, that an action of ejectment, by Samuel Higdon, against the plaintiffs, for the premises in question, is now pending in the Superior Court of Haywood county, and has been pending for several years.”

The defendants' counsel objected to the amendment, for that the Court had not the power to make it--that it could not take cognizance of it upon ...