Waring v. . Wadsworth

Ashe, J.

We are of the opinion that the payment of the money arising from the sale of lot No. 3 by the mortgagee, to John E. Brown, the attorney of the Mecklenburg building and loan association, or to F. H. Dewey, the treasurer of said company, was not a satisfaction of the judgments rendered for equality of partition by the clerk of the superior court in the case of T. R. Waring and others; and that the statutory lien is still in force upon the said lot into whosoever hands it may have passed-. The case remains in the superior court under the jurisdiction of the clerk, and the only questions carried by appeal to the judge of the district were, whether the clerk had the-power to reform the judgments rendered by him in the case by striking out the personal judgments against T. R. Waring, and entering them against the share, to-wit, lot No. 3, allotted to T. R. Waring, in favor of the other parties respectively — Louis, Robert and Virginia Waring — agreeably to the report of the commissioners, and to issue writs of venditioni exponas as applied for, or to issue the writs upon the judgments as entered.

The clerk clearly not only had the power to reform the judgments and make them more regular, and issue the writs upon them as prayed for, but it was his duty so to do; but we think the judgments as they now stand are substantially a compliance with the requirements of the statute.

The judge below may haye transcended his power as an appellate court by making the order for the sale of the land, but as it was virtually doing what it was the duty of the clerk to have done, and a procedendo was ordered to be issued to him to carry the order into effect, there is no error. Let this be certified to the superior court of Mecklenburg, to the end that a writ of procedendo may be issued to the clerk of the superior court of said county, directing him to modify the judgments as prayed for, and issue the writs of vend. ex. thereon, or to issue the same writs upon the judgments as they now stand against lot No. 3, as the said Louis, Robert and Virginia may be advised.

No Error, Affirmed.