Hinton v. . Roach

Ashe, J. (after stating the facts). Upon the case as made out by the plaintiff, the defendant contended he had failed to make out his case, and that he was entitled to a judgment, upon these grounds: 1. Because the plaintiff had neither shown a judgment from the Justice of the Peace, nor a transcript of his judgment, and *110 had only shown an entry on the judgment docket of the Superior Court of Pasquotank, No. 224, Hinton v. Roach. We do not think the objection is tenable. The judgment docket, offered in evidence, shows the entry “No. 224, to-wit: John L. Hinton v. Josiah Roach, judgment for $28, dated March 2d, 1854,” and then followed, the entry of several other judgments, for different amounts, rendered at different times, making in all the sum of one hundred and forty-one dollars and twenty-five cents, “and the further sum of $4.70, costs of action, April 23d, 1870.” The entry was certainly very irregular, but it is manifest from the amounts, which are different, and the memorandum appended, that they were transcripts of judgments, rendered before a Justice of the Peace, in favor of John L. Hinton, against Josiah Roach. The execution recites the judgment in favor of Hinton v. Roach,-for $28, and there stands upon the judgment docket, a judgment for that amount, in favor of Hiuton v. Roach. The plaintiff, then, has shown an execution and a judgment. It is true, the execution recites other judgments, and calls for a larger sum than the $28, but that irregularity is cured by §1347 of The Code, (Acts of 1848, chap. 53), which declares, “wherever property may have been sold by an officer, by virtue of an execution, or other process, commanding the sale thereof, no variance between the execution and the judgment, whenever the same was issued, in the sum due, in the manner in which it is due, or in .the time when it is due, shall invalidate, or affect the title of the purchaser of such property.” Marshall v. Fisher, 1 Jones, 11. The plaintiff, then, has shown an unobjectionable execution. But it is contended, that even if that be so, still, as the plaintiff in the execution was the purchaser at the Sheriff’s sale, he is •bound to show a judgment, which he has failed to do, because the entry of the judgment, offered by him in evidence, was a nullity. But that is not so. It purports to be a judgment of a Court of competent jurisdiction, and the most that can be said against its validity is, that it is irregular — not entered according *111 to the course and practice of the Court, but it is conclusive, until set aside, and can only be set aside at the instance of a party to the action, who is prejudiced by it. Hervey v. Edmunds, 68 N. C., 243. But, whether set aside, or not, a stranger, who purchases under an execution issued upon it, will get a good title, and so will the plaintiff in the judgment, if it is not set aside, but when set aside, it will no longer justify him, in any of the acts done under it. It is then the same as to him as if it had never been. Skinner v. Moore, 2 D. & B., 138; Bender v. Askew, 3 Dev., 149. The judgment, then, not having been set aside, it will support'the title of the plaintiff, until it is set aside, and even when that is attempted, the effort to do so, may possibly be defeated by a motion on the part of the plaintiff to correct the irregularity, by an amendment of the record. Green v. Cole, 13 Ired., 425; Parsons v. McBride, 4 Jones, 17; Bagley v. Wood, 12 Ired., 70. The next exception takeu by the defendant was, “ that the judgment was dormant at the time of execution issued, as it was not revived either upon satisfactory proof or affidavit.” In Surratt v. Crawford, 87 N. C., 372, it was held: “ It is not inquired that an affidavit be made that the judgment, or some part of it, remains unsatisfied and due, since while, if the fact is to be established by the plaintiff’s own oath, it must be in that form, any other ‘satisfactory proof’ is admissible for that purpose.” The fact that the defendant was present when the order was made by the Clerk, and offered no objection to the order, was sufficient proof to warrant the Clerk in concluding that the judgment was unsatisfied. His silence was properly taken as an admission of the fact. The defendant’s only other exception was, “ that the deed and complaint are too vague and indefinite to allow the plaintiff to recover.” This exception goes to the description of the land sued for, in the complaint and Sheriff’s deed. The complaint describes the land, as “that certain tract of land adjoining the land of the *112 plaintiff, and of Marshall P. Stokely and others, now wrongfully possessed by the defendant, containing thirty-seven and one-half acres ” —and it is described in the deed, as a certain tract of land, in Newland Township, joining the lands of said Hinton, M. P. Stokely and others, said to contain thirty-seven and a half acres more or less.” In the Court below, the plaintiff offered to show, by parol evidence, that the defendant Roach owned no other land than that described, as joining the lauds of M. P. Stokely, J. L. Hinton, W. J. Spence and the land on which said Roach lived, and that the land described in the Sheriff’s levy and deed, and in the complaint, were the same. The evidence was objected to by the defendant, but received by the Court. The description of the land, in the complaint and deed, was sufficient to admit extrinsic evidence of its identity. The description is very similar to that in Farmer v. Batts, 83 N. C., 387, where the description was, “One tract containing 193 acres, more or less, it being the interest in two shares, adjoining the lands of J., B., E., O., and others,” and it was held, that the description was not too indefinite to admit- parol evidence, to fit the description to the thing. That decision is so apropos to the question under consideration, that it must govern this case, and it is needless to cite any other authority to the same effect, except that of Harrell v. Butler, 92 N. C., 20, in which the decision in Farmer v. Batts is approved. There is no error. The judgment of the Superior Court is affirmed. No error. Affirmed.