Federal Land Bank of Columbia v. Davis

*103 BaeNhill, J. Tbis 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, but not the merits of the original controversy, may be made in the cause. Finance Co. v. Trust Co., 213 N. C., 369, and eases there cited. Parties to the action may, by motion in the cause, have clerical errors therein corrected. McIntosh N. C. Prac. & Proc., page 733; Strickland v. Strickland, 95 N. C., 471; 10 A. L. R., 526 (notes); Lindsay v. Lindsay, 67 A. L. R., 824 and annotations; Drainage Dist. v. Fremont County, 114 A. L. R., 1093. On motion made the court has the power and it is its duty to correct apparent or proved clerical mistakes in judgments and cause them to speak the truth. The fact that the defendant did not file an answer, thereby admitting the allegations of fact in the complaint, which entitled the plaintiff to a judgment by default final, does not deprive him of the right which he would otherwise have to move in the cause for a correction of the judgment. The error in the original judgment arises out of the fact that the judgment is one by default final and is due to the provisions therein, which are in excess of the relief to which the plaintiff is entitled upon the facts alleged. It is expressly provided by C. S., 606, that where there is no answer filed the relief granted to the plaintiff cannot exceed that demanded in his complaint. While in an action where an answer is filed the court may grant the plaintiff any relief consistent with the ease made by the complaint and embraced within the issue, if there is no answer the judgment by default must be drawn strictly in accordance with the case stated in the complaint. The defendant is concluded by the decree only so far as it is supported by the allegations in the complaint. If it gives relief in excess of, or different from, that which the plaintiff is entitled to under the complaint it should be set aside or *104 modified so as to conform to tbe allegations. McIntosh N. C. Prac. & Proc., 714; Currie v. Mining Co., 157 N. C., 209, 72 S. E., 980; Junge v. MacKnight, 137 N. C., 285, 49 S. E., 474; Jones v. Mial, 82 N. C., 252. Where a judgment by default final grants relief in excess of that to which the plaintiff is entitled a motion in the cause is the remedy available to the defendant for the correction thereof. It follows that the defendant is within his rights and is pursuing the proper remedy in lodging a motion in the cause for a correction of the judgment by striking out such provisions thereof as are not consistent with the case made by the complaint. The plaintiff by its complaint seeks the foreclosure of a mortgage to which reference is made in the complaint. The complaint specifically describes the land conveyed in the mortgage. The description makes specific reference to a deed in the mortgagor’s chain of title which expressly excepts the coal and mineral rights. The movant took title under a deed from the mortgagor which was executed and delivered subsequent to the mortgage. Whether the description contained in the mortgage and in the decree of foreclosure, by reason of the reference to the Marshall deed, does or does not embrace coal and mineral rights is a question which is not raised by the complaint. There are no allegations in the complaint upon which this question may be adjudicated. On the complaint the plaintiff was entitled to a decree of foreclosure of the land described in the mortgage as therein described. The foreclosure deed would thus convey whatever interest the mortgage conveyed. We are of the opinion, therefore, that the provision of the judgment that upon sale of the land all the right, title and interest of the movant should be thereupon forever foreclosed, as the provision relates to that portion of the tract sold which was acquired under the Marshall deed, extends beyond the relief to which the plaintiff was entitled and which the court was authorized by law to grant in a judgment by default final. Only the interest conveyed by the mortgage could be forever foreclosed. In his motion the defendant seeks to have the description contained in the decree of foreclosure enlarged so as to expressly except the coal and mineral interests. This goes beyond the relief to which he is entitled. He only has the right to have the judgment so modified as to show that the interests conveyed by the mortgage are ordered foreclosed and that as to such interests he and the other defendants are forever foreclosed. He has no right to have inserted in the judgment an additional clause, which in fact would declare that the mortgage description was not such as to convey the coal and mineral interests. If the movant insists ujion this right it must be litigated in another action. *105 Tbe court below undertook to adjudicate on tbe motion of tbe defendant made after final judgment tbat tbe description contained in tbe mortgage was sufficient to convey tbe coal and mineral rights. Tbe defendants’ motion was to correct tbe judgment. Tbe plaintiff in its complaint did not seek an adjudication of its right to tbe coal and mineral interests under the mortgage, and tbe motion of tbe defendant was allowable only to tbe extent tbat it sought to have provisions of tbe judgment in excess of tbe relief demanded stricken from tbe judgment. Tbe court below inadvertently sought to determine issues not raised upon tbe pleadings and which could not be raised by motion in tbe cause after judgment. Therefore, tbe judgment entered on tbe motion undertaking to adjudicate tbe force and effect of tbe description in the mortgage was without warrant in law. Tbe plaintiff bad no more right to have tbe judgment enlarged to this effect in its favor than did tbe defendant to have it enlarged or modified to contrary effect in bis behalf. Tbe judgment of tbe court below cannot be sustained. Tbe cause is remanded for a judgment reforming tbe decree of foreclosure in accordance with this opinion. Tbe plaintiff will then be entitled to a writ of assistance directing tbe sheriff to dispossess tbe defendant and place tbe purchaser in possession of tbe interest in the lands foreclosed, which it is admitted at least includes all surface rights. Thus, tbe defendant will not be precluded from asserting any interest in tbe land which be now owns or claims to own which were not embraced within tbe mortgage. As to tbe interest in tbe land which was conveyed by tbe mortgage and sold under tbe decree of foreclosure tbe defendant is forever foreclosed and estopped to assert any title thereto. What this interest was or is cannot be litigated by a motion in tbe cause. Error and remanded.