#### W. H. HERBIN, et al. v. MARY E. WAGONER.

Appeal — Case on Appeal, /Service of — Practice—Irregularity of Decree — Judicial Sale — Innocent Purchaser.

1. A ease on appeal or counter case must be served by the sheriff, unless service be accepted in writing and made a part of the record.

2. A purchaser at a judicial sale, if not a party to the proceeding, is not bound to look beyond the decree if the facts necessary to give jurisdiction appear on the face of the proceedings. If there has been an irregularity, or the jurisdiction has been improvidently exercised, it will not be corrected at his expense; hence,

*6573. Where the report of commissioners to partition land through the mistake of the draftsman allotted “ Lot No. 1 ” to R. H. instead of to W. H., and the land was subsequently sold for assets by the administrator of R. H. and bought by W., who paid the price and received a deed, and the land was again sold for assets by the administrator of W. and bought by the defendant; Held, that the record of the original proceeding to which the plaintiffs were parties will not be corrected to the injury of the defendant who purchased without any notice of the mistake.

This was a PROCEEDING-, begun before the Clerk of the Superior Court of Ro'ciciNGHam, by William H. Herbin, by motion, founded on an affidavit and carried by theiespond-ent, Mary E. Wagoner, by appeal to the Superior Court in Term, where the judgment of the Clerk set out in the record was affirmed, and the respondent appealed to this Court.

In the month of February, 1880, the parties above- ■ n 'med filed a petition in the superior court of Rocking-ham county for a partition of the land of William and Robert Herbin, deceased, they being lieirs-at-law of Robert and devisees of William Herbin. Partition was had, the report of the commissioners confirmed and registered in said year, and by this decree it is known as Lot No. 1 in Lot No. 2, and allotted to Robert Herbin, who soon thereafter died intestate in G-uilford county. Subsequently Wm. P. McLean was appointed his administrator, in Guil-ford, and filed a petition in the office of the clerk of the superior court of this county for license to sell the lands which belonged to Robert Herbin, as aforesaid, to make assets to pay debts, and to this proceeding all the parties in this cause, except the respondent, Mary E. Wagoner and her'husband, were made defendants. Under a decree rendered in said cause, the said W. P. McLean, administrator *658as aforesaid, sold the said land which had been allotted to Eobert Herbin as aforesaid, on the 4th day of April, 1881, when one Simeon "Wagoner became the purchaser, and upon said sale being confirmed, the said administrator, as directed, executed to Simeon Wagoner the deed appearing-in the record, marked Exhibit “ A.”

On the 8th day of June, 1888, Simeon Wagoner, above-named, havingdied intestate in Guilford county. Elizabeth Wagoner, who had therefore been appointed his adminis-tratrix, filed a petition in the superior court of Guilford to sell the lands of her intestate to make assets to pay debts, and subsequently the same was sold by her, when the respondent, Mary E. Wagoner, bought this tract known as Lot No. 1, in Subdivision No. 2, which was previously bought by Simeon Wagoner from William' P. McLean, administrator, and Elizabeth Wagoner, administratrix, exe-. cuted and delivered a deed therefor, which is duly recorded in Guilford county.

On the 28th day of June, 1895, Wm. IT. Herbin filed a petition in the original partition cause in Eockingham county, which had been begun in 1880 as aforesaid, alleging that a mistake had been made by the draftsman of the report, and that Lot No. 1, in Subdivision No. 2, should appear as having been allotted to him instead of to Eobert Herbin, and asked the court to enter a decree correcting the same, in accordance with the prayer of his petition, and asking that a notice be issued to the respondent, Mary E. Wagoner, who claimed the land under Eobert Herbin, requiring her to appear before the said clerk on a day thereiu named, and show cause why the prayer of petitioner should not be granted. The said Mary E. Wagoner appeared and filed an answer. Numerous affidavits were produced on both sides and exhibits, including the tran*659scripts of the two proceedings had in the superior court of Guilford, and the two deeds hereinbefore referred to.

The Clerk rendered judgment for amending the record, ■whereupon the respondent excepted and appealed ' to the superior court. Upon a hearing before Norwood, J., at-Term of RoCicingííAM Superior Court, the judg-

ment was affirmed, when the respondent, Mary E. Wagoner, again excepted and appealed to the Supreme Court, assigning- as error:

“ 1. In that the court held that the mistake complained of should be corrected to the prejudice of Mary E. Wagoner, the purchaser, who had no notice of such mistake.

“ 2. In not holding that the petitioner was barred on account of his laches.”

Mr. John A. Barringer, for plaintiffs.

Messrs. Dillard ds King and Shepherd & Busiee, for defendant (appellant).

Faircloth, C. J.:

The defendant appellant had her ease on appeal duly served on plaintiff’s attorney, who prepared his exceptions thereto and returned the same, with his copy, to an attorney supposed by him to represent the appellant, without any acceptance or service by the sheriff. These papers remained with said attorney, and the papers were never sent to the judge who tried the case, and no case was settled for this Court by the judge. The appellant had the transcript docketed in this Court with her case on appeal. The plaintiff appellee now comes and moves for an order for a writ of certiorari to be issued to the lower court to settle the case, alleging on affidavit, among other things, that said attorney did represent defendant in the superior court, that service was waived, and an agreement, (verbal) that the papers should be sent to the judge to settle the case, &c. These allega*660tions, by affidavit, are denied by the attorneys alleged to have represented the appellant in the superior court.

This Court would be embarrassed with the unpleasant duty of finding facts at issue between members of the bar but for the statute and rules and decisions of this Court to the effect that a case on appeal, or counter case, must be served by the sheriff, unless service be accepted in writing and made a part of the record. This case illustrates the reasonableness of such rules. Assuming, then, for the sake of argument only, that the plaintiff’s allegations are true, that the counsel represented the defendant, we cannot grant his petition for the reason that the waiver is denied and the counter case was neither duly served nor accepted in writing. State v. Price, 110 N. C., 599; Forte v. Boone, 114 N. C., 176; Sondley v. Asheville, 112 N. C., 691; Graham, v. Edwards, 114 N. C., 228, and cases cited ; Rule 39 of Supreme Court.

1. It appears that certain lands were partitioned among the plaintiffs and confirmed by decree of the court, and that in the division a mistake was made by the draftsman of the commissioners’ report in allotting Lot No. 1 to the heirs of Robert Herbin, instead of W. H. Herbin, and that said land was afterwards sold for assets as the property of Robert and purchased and paid for by Simeon Wagoner, and deed made by order of the court.

2. That subsequently the administratrix of Wagoner sold the same land for assets, and the defendant Mary E. Wagoner purchased and paid for the land and received a deed under a decree of the court. In June, 1895, the plaintiffs, who were } arties to the original proceeding, notified defendant to show cause in that original proceeding why said mistake should not be corrected by amending the record therein, and it was adjudged by the court that such amendment be m ade and defendant appealed. In all of said pro *661ceedings all proper parties were before the court and it is not denied that the court had jurisdiction of the parties and the subject matter.

The question is now presented whether the plaintiffs, who were parties to the action in which the mistake occurred, or the defendant, who was not a party and is a purchaser for value and without notice, shall bear the loss or inconvenience of the mistake.

The law favors protection to innocent purchasers at judicial sales, and all respectable courts have held that they should be protected against irregularities under their decrees when the jurisdiction is complete, even on amotion in the original cause.

The question was well considered by this Court in Sutton v. Schonwald, 86 N. C., 198, and it was held accordingly that the purchaser’s title was not rendered invalid by the reversal of the decree on account of irregularity in the proceeding, of which the purchaser had no notice. . In that ease the defendant acted as guardian of two infants, being, however, guardian for only one, and sold the land-of both under an order of the court, and the sale was upheld. The Court said : “ Hence it is that a purchaser, who is no party to the proceeding, is not bound to look beyond the decree, if the facts necessary to give the court jurisdiction appear on the face of the proceeding. If the jurisdiction has been improvidently exercised, it is not to be corrected at his expense, who had the right to rely upon the order of the court as an authority emanating from a competent source — so much being duo to the sanctity of judicial proceedings, and upon every principle of policy or strict right it should not be allowed to be reversed (though -in a direct proceeding in the same court) at the cost of an innocent purchaser.” The injured party must look elsewhere for his redress.

*662We have many other decided cases of the same import, in which the rights of third persons are protected. Morris v. Gentry, 89 N. C., 248; England v. Garner, 90 N. C., 197.

In this case it was sufficient for the defendant to see jurisdiction and a final decree, and she was justified in presuming that the proceedings, on which the judgment was entered, were regular.

Error.