H & B COMPANY OF STATESVILLE v. Hammond , 17 N.C. App. 534 ( 1973 )

195 S.E.2d 58 (1973) 17 N.C. App. 534

H & B COMPANY OF STATESVILLE, Plaintiff,
v.
Robert C. HAMMOND and wife, Myrtle Winston Hammond and Robert C. Hammond, President of Industrial Building Corp., Defendants, and
James C. Messick and wife, Hazel K. Messick, Intervening Defendants.

No. 7322SC2.

Court of Appeals of North Carolina.

March 14, 1973.

Collier, Harris, Homesley & Jones, by Edmund L. Gaines, Statesville, for plaintiff appellee.

Chamblee & Nash, by Fred Chamblee, Statesville, for intervening defendant appellants.

GRAHAM, Judge.

In moving "to correct" the default judgment entered on 19 January 1971, plaintiff was not seeking relief from the judgment pursuant to G.S. § 1A-1, Rule 60(b) which allows a court to "relieve" a party or his legal representative from a final judgment under certain circumstances. The default judgment was in no way adverse to plaintiff, and rather than seeking to be relieved from its operation, plaintiff was attempting to have its rights under the judgment extended to include additional and entirely different relief. In allowing plaintiff's motion, the court amended the judgment so as to make it a specific lien against the property now owned by appellants. Appellants acquired title to the property without any notice that it was, or might become, subject to a lien superior to the interest which they acquired. In our opinion, plaintiff was not entitled to any change in the judgment which would adversely affect the intervening rights of innocent third parties and we therefore reverse the court's judgment allowing plaintiff's motion.

Plaintiff contends that the omission was simply a clerical mistake that was subject to correction pursuant to Rule 60(a). This rule provides in pertinent part that "[c]lerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the judge at any time on his own initiative or on the motion of any party and after such notice, if any, as the judge orders."

The amendment to the judgment allowed here is much more extensive than a mere technical correction such as contemplated by Rule 60(a). Rule 60(a) simply codifies the body of law in existence in this State at the time the new rules of civil procedure were adopted. 2 McIntosh, N. C.Practice 2d, § 1711 (Phillips Supp.1970). While courts have always had the inherent authority to correct clerical errors or errors of expression in a judgment, they have never been deemed to have the authority, outside of term, to correct an error in decision, or to amend a judgment so as to adversely affect the rights of third parties. See 2 McIntosh, N.C.Practice 2d, § 1711. It is noted that under the present rules of civil procedure a motion to alter or amend a judgment must be served not later than ten days after the entry of the judgment. G.S. § 1A-1, Rule 59(e).

Plaintiff says the amendment is required by equitable principles and points to Rule 60(b)(6) which permits the court to relieve a party from a final judgment for any reason justifying relief. In support of this contention plaintiff argues that it should not be penalized for the mistake of its counsel in failing to apply to the clerk for all of the relief prayed for in the complaint. To so hold, however, would be to say that it is the appellants who should be penalized for the mistake of plaintiff's counsel. Equity here weighs heavily on the side of appellants. The money judgment on record in Davie County at the time intervening defendants' deed to the property was recorded did not affect the interest which they were acquiring. While a Notice and Claim of Lien against the property was also on file in Davie County, the record there indicated that no action to perfect the lien had been brought in that county within the time required by G.S. § 44A-13(a) (Supp.1971), which also provides that "[a]n action to enforce the lien created by this article may be instituted in any county in which the lien is filed." Certainly, an attorney examining the title to the property acquired by appellants would have been under no duty to examine the records of all counties in the State to ascertain whether an action had been brought in any of those counties to enforce a notice and claim of lien filed against property located solely in Davie County.

Plaintiff's contention that the default judgment on file in Davie County should have placed appellants on notice that it was subject to be amended so as to make it a specific lien against the property in question is without merit. It is true that the Notice and Claim of Lien filed against the property in Davie County on 28 August 1970 was for the almost identical monetary amount awarded in the judgment. Even if this should have suggested that the judgment was for the same debt as that claimed in the notice of lien, it does not follow that anyone should have been put on constructive notice that plaintiff was also entitled to have the judgment declared a specific lien upon the property. Parties often seek a specific lien on real estate when they are entitled to a money judgment only. Indeed, plaintiff's Notice and Claim of Lien suggests this to be the case here. The notice specifically alleges that the materials furnished by plaintiff were furnished original defendants pursuant to "an entire and indivisible contract made and entered into by Robert C. Hammond, individually, and Robert C. Hammond as President of Industrial Building Corporation. . . ." The property against which the notice was filed was owned by the original defendants as tenants by the entireties. If the wife were not also a party to the contract which allegedly was entered by the husband and a corporation, plaintiff would not be entitled to have a lien enforced against the property. Leffew v. Orrell, 7 N.C.App. 333, 172 S.E.2d 243.

The case comes down simply to this: The default judgment, obtained by plaintiff in Iredell County on 19 January 1971 and subsequently docketed in Davie County, constituted only a general lien against all of the real property owned by original defendants in Davie County. It was subject to prior liens, including the lien of the deed of trust to Federal Land Bank of Columbia recorded 4 August 1970. Consequently, when appellants' deed to the property was recorded in Davie County, there was nothing on record in that county to indicate that plaintiff's judgment was or could become a specific lien which would relate back to a date preceding the recording date of the deed of trust and become superior to the interest appellants acquired in the property by deed. Appellants were entitled to rely upon the records as they then existed in Davie County.

Reversed.

CAMPBELL and BROCK, JJ., concur.