Stafford, Adm'r, C. v. . Harris, Guardian, C , 72 N.C. 198 ( 1875 )

ByNüm, J.

The plaintiff as administrator, instituted special proceedings in the Probate Court against the defendants, who are the infant heirs of the intestate, for the sale of a tract of land to make assets for the payment of debts. The petition for that purpose contained the following description of the land : “ One tract of land in Pasquotank county containing 90 or 100 acres, more or less, adjoining the lands of Prank Jennings, Lowry Davis Sam’l Rhodes and C. L. Whitehurst.” The defendant answered, admitting the necessity of the sale, •and an order of sale made as prayed for. The administrator in advertising the sale, described the land as one tract as set forth in the petition and order of sale and the land was sold by the same description, the sale confirmed by the court, and the title was ordered to be made on the payment of the purchase money.

The money has been paid but the administrator died before ■the title could be made. The purchaser, one Hinton now files his petition in the Probate Court, as a foundation for a motion in the cause, alleging that the intestate owned another small tract of ten acres near this larger one, but separate therefrom, by an intervening strip of land about 200 yards wide, belonging to a third person. He alleges that it was intended by the-administrator to sell all the land of the intestate, which consisted of these two tracts only, and that both he and others who bid so understood it. The motion is, to be allowed to amend the petition so as to set forth by apt words of description, the small tract of land, and that the subsequent pleadings and decree of sale be made conformable thereto, and that under his said purchase the title be made to him for both tracts of land. The Court of Probate after hearing much evidence, which was objected to by the defendants, allowed the motion, but the rights of infants being involved, the court certified the case and his judgment thereon to the Judge of the District, who upon hearing the same affirmed the judgment of the Probate Court and ordered the Clerk to make title to both tracts of land to Hinton, the purchaser, and the defendants appealed to this court. There is error..

1. The Judge of the District had no jurisdiction, in the case as constituted. It is a mistake to suppose that in all special-proceedings before the Clerk, where the interests of infants-are involved, these proceedings must be submitted to and approved by the Judge of the District. The rule applies only in those cases where the petitioners are infants and the proceedings are ex parte. O. O. P- sec’s. 418-19-20. Our case is not ex parte, but is an adversary action wherein the Clerk has exclusive original jurisdiction, and'1 where his judgments are final, subject only to the right of appeal. Bat. Rev. chap. 45-, sec. 61, et seq.

2. The Court of Piobate, here had no jurisdiction to make any order in the cause as it then stood, for the pleadings show, that at the time Hinton, the purchaser made his motion, and the Court allowed it, the plaintiff in the action was dead, and the action in fact, was abated. There being then no case regularly constituted in Court, the motion and order in the cause, were irregular and void.

3. But the question intended to be made and submitted to this Court is, assuming the case to be properly here, had the Court of Probate the power to make the amendment prayed for and allowed ? While the power of amendmentsisliberally vested in the several Courts, both by the section relied on, C» O. P. sec. 132, and other sections of the Code, and while we-lay down no unvarying rule which is to govern amendments in all cases, it is safe to say that the law confers upon the Clerk the power to make no such amendment as this. The petiton, order of. sale, confirmation of sale and order to make title was for a single tract of land, identified and made certain, by boundaries and description. It is now proposed to show by parol evidence, that the purchaser bought, not only this tract which was described in the pleadings but that in fact he also-bought another, and distinct tract of land, neither named or described in the petition or decree of sale. If the title to land could be passed in this way a wide door would be opened for- fraud and perjury, which it is the purpose of the statute to prevent.

Pee CubiAM. Judgment reversed and petition dismissed.