Balch v. Shaw

61 Mass. 282

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1851
• Status: Published

Opinion

Fletcher, J.

This is a writ of entry. The demandants claim in right of the wife as heir of John Tilley. The tenant claims under a sale by the executors of John Tilley, by virtue of a license of the court of common pleas. To make out hi? title, the tenant produced a record of the court of common pleas. The case turns, therefore, upon the question whether the record was rightfully amended, so that the tenant can maintain his title on that record.

There can be no doubt that it is competent for a court of record, under its general, inherent, and necessary authority, to correct the mistakes and supply the defect of its clerk or recording officer, so as to have the record conform to the actual facts and truth of the case, and that this may be done at any time as well after as during the term, nunc pro lunc. The length of time in this case, between granting the license and making up the record, does not take away the right or jurisdiction of the court. The authorities upon this point are numerous and conclusive.

* This was not a case of want of jurisdiction, in which the record cannot be amended, because, there being an omission to act, there is nothing to record; in such case, the defect is not in the record, but in the action of the court.

It was further said in argument, that there was not sufficient material from which to make up the record. But the court of common pleas, having the exclusive right and jurisdiction in the matter, were the proper judges of the necessity and propriety of extending the record, and of the proofs and of the sufficiency of the proofs upon which to proceed. Such a record, when 1 made up, is conclusive, until altered or set aside by the same or some other court having jurisdiction, but it cannot be drawn in question collaterally when such record is used or relied upon in support of a title.

It was further said, that the extended record was invalid, because made without notice. But this was not a case for notice. Surely a court of record need not give notice to all the world to come in and show cause why it should not make its record conform to the truth of the case. Any party, who supposes he can show such cause, should apply to the court .to have the record set aside or expunged, after it is made.

Then as to the objection that the record was extended upon the application of Vinal, who was not interested in the premises demanded in this suit. If he had an interest in the demanded premises, or if he had no interest, it would not be material. The court might amend their records upon their own motion, or upon the motion or suggestion of any one interested. It is not a proceeding in which there need be any parties. It is the act of the court itself, correcting its own records, to make them conform to the truth of the case.

These general views will render it unnecessary to consider particularly some other ingenious arguments which were offered by the counsel for the demandant. The court being of opinion that there was a sufficient record of the order of the court of common pleas to sell the premises conveyed to Jones, there must be Judgment for the tenant.

See Usher v. Dansey, 4 M. & S. 94; Atkins v. Sawyer, I Pick. 351; Tilden v. Johnson, 6 Cush. 354; Hall v. Williams, 1 Pairf. 278, 288; Close v. Gillespey, 3 Johns. 526; Waldo v. Spencer, 4 Conn. 71.