Maxwell v. . Blair

MebrimoN, J. (after stating the facts). This is a special proceeding, and there can be no question that the Clerk of the Superior Court, acting for the Court, had authority to make the order in question, if it were a proper one to be made at all. The Code, §251; Brittain v. Mull, 91 N. C., 498; Jones v. Desern, 94 N. C., 32. The Clerk could not, and did not in this case, exercise authority under the statute (The Code, §274); the Judge alone could do so, because he is specially charged with such authority. But the “ Judge or the Court” exercises authority under the statute (The Code, §273), in respect to “Amendments by Order,” and he may exercise authority generally, acting for the Court, under the statute (The Code,-§251), “ unless the Judge of said Court (the Superior Court), or the Court at a regular term thereof, be expressly referred to.” This proceeding had not been determined when the application for relief under consideration was made in it. No final judgment had been entered. The orders made in it were interlocutory, and under the control of the Court. Upon proper application, and for just cause shown, the Court could change, modify, or rescind them, or any of them, altogether, especially as it is not suggested that the right of third parties would be prejudiced by such action of the Court. Shinn v. Smith, 79 N. C., 310; Molyneux v. Huey, 81 N. C., 106; Miller v. Justice, 86 *322 N. C., 26; McEachern v. Kerchner, 90 N. C., 177 ; Williamson v. Hartman, 92 N. C., 236. The appellee does not seek the remedy allowed by the statute, (The Code, §274). She claims the benefit of the jurisdiction of the Court to grant equitable relief against mistake. The ground of her application is, that under the cireumstauces of the ease, it would be inequitable and against conscience on the part of the appellant to take advantage of her mistake in failing to set up her title to a part of the land, which he seeks unjustly to sell. The land in question was hers — not that of the appellant’s intestate. She did not know that it was embraced by the appellant’s petition — it seems that he did not know that it was hers — if he did, so much the worse on his part. She was content to let an order of sale be entered as to her ancestor’s land, but she did not consent that her own should be sold — she had no reason to suppose that an effort would be made to sell it — she had technical notice — no notice in fact — nor did such as she had lead her to suppose, infer or expect that it was proposed to sell her land, in no sense liable to be sold. The naked proposition is, that the appellee’s land shall be sold by the appellant, without any consideration moving her to consent to the sale, to make assets to pay the debts of her deceased father, and this, because she failed by mistake that she might not unreasonably make, to answer the appellant’s petitiou and set up her title to the land! Manifestly, this is unequitable — unjust! And a Court of equity will not allow it to be done, simply to uphold a naked advantage gained in the course of procedure, and that by mistake and misapprehension on the part of the party complaining. The authorities cited in the brief of the appellant’s counsel, do not apply to a case like the present one. In these cases no equitable feature was presented, and the Court was simply asked to exercise its discretionary authority, as allowed by the statute, (The Code, §274). There is no error, and the judgment must be affirmed. No error. Affirmed.