DeviN,
J.
The defendants’ appeal from the judgment below was based solely upon the ground that the judgment of the clerk of the Superior Court was void for want of authority, and that its affirmance by the judge could not give it life. It was contended that the motion of the appellees was to correct the record so as to include 1.3 acres of land omitted from the petition and orders by mistake, and that the findings of fact made out a case which required the aid of an equity which the clerk was without power to administer.
It is true the clerk has only such jurisdiction as is given by statute,
Moore v. Moore, ante,
552;
Beaufort County v. Bishop,
216 N. C., 211, 4 S. E. (2d), 525;
McCauley v. McCauley,
122 N. C., 288, 30 S. E., 344, and that he is not vested with power affirmatively to administer an
equity except in those cases where it is specially- conferred by statute,
Cheshire v. Church,
221 N. 0., 205, 19 S. E. (2d), 855;
High v. Pearce,'
220 N. 0., 266, 17 S. E. (2d), 108, but that does not mean the judgment of the Superior Court in this case is necessarily void. It is expressly provided by statute (G-. S., 1-276) that “whenever a civil action or special proceeding begun before the clerk of a Superior Court is for any ground whatever sent to the Superior Court before the judge, the judge has jurisdiction.” Even in those cases where the clerk is without jurisdiction to make the decree, if the cause comes within the general jurisdiction of the Superior Court and invokes the proper exercise of its power, by virtue of this statute the judge upon appeal may proceed to consider and determine the matter. This statute since its enactment in 1887 has been upheld and applied by this Court in numerous cases:
Lidie v. Chappell,
111 N. 0., 347, 16 S. E., 171;
Elliott v. Tyson,
117 N. C., 114, 23 S. E., 102;
Ledbetter v. Pinner,
120 N. C., 455, 27 S. E., 123;
Faison v. Williams,
121 N. C., 152, 28 S. E., 188;
Boseman v. Boseman,
127 N. C., 494, 37 S. E., 518;
Oldham v. Bieger,
145 N. C., 254, 58 S. E., 1091;
Wooten v. Cunningham,
171 N. C., 123, 88 S. E., 1;
Perry v. Perry,
179 N. C., 445, 102 S. E., 772;
Hall v. Artis,
186 N. C., 105, 118 S. E., 901;
In re Estate of Wright,
200 N. C., 620, 158 S. E., 192;
Spence v. Granger,
207 N. C., 19, 175 S. E., 824;
Bynum v. Bank,
219 N. C., 109, 12 S. E. (2d), 898;
Cody v. Hovey,
219 N. O., 369, 14 S. E. (2d), 30;
Perry v. Passenger,
219 N. O., 838, 15 S. E. (2d), 865;
Cheshire v. Church,
221 N. C., 205 (208), 19 S. E. (2d), 855;
Wilson, Ex Parte,
222 N. C., 99, 22 S. E. (2d), 262.
Where the clerk exceeds his authority,
Hodges v. Lipscomb,
133 N. C., 199, 45 S. E., 556, or has no jurisdiction,
Boseman v. Boseman, supra; Williams v. Dunn,
158 N. O., 399, 74 S. E., 99, and the cause for any ground is sent to the judge, the judge may retain jurisdiction and dispose of the cause as if originally before him.
Perry v. Passenger, supra. Stafford v. Harris,
72 N. O., 198, decided prior to the Act of 1887, and upon somewhat different facts, is not in point.
In the case at bar the matter was properly presented by a motion in the cause by the purchaser at the partition sale.
Wilson, Ex Parte, supra.
The facts were not controverted. Manifestly it was the intention of all the parties that all the lands of decedent be included in the sale. By mistake a tract of 1.3 acres covering a part of the mill pond was omitted from the specific description in the petition. However, it was announced at the sale that this was included in the lands being sold, and upon that statement the purchase was made by the appellant Ricks Leggett, and with that knowledge the bid was transferred and deed made to the movents and consideration paid. "With that knowledge proceeds of the sale were received by all the parties, including the appellants.
While the defendants excepted generally to the clerk’s findings of fact, no objection to any specific finding was noted. This was insufficient.
Sturtevant v. Cotton Mills,
171 N. C., 119, 87 S. E., 992;
Rawls v. Lupton,
193 N. C., 428, 137 S. E., 175;
Wilson v. Robinson, post,
851; 3 Am. Jur., 129. No evidence
contra
was offered or suggested. The only exception to the action of the Superior Court judge was to the signing of the judgment. ,A11 the parties were before the court. There were no issues of fact. No rights of purchasers for value or without notice had arisen. The appellants in their brief raise only the question of the power of. the clerk to grant the relief prayed for in the motion. Upon these facts the Superior Court in the exercise of general jurisdiction had power to permit the amendment of the petition
nunc pro tunc
to conform to the intention of all the parties, plaintiffs and defendants.
The power of the court to permit amendment is expressly conferred by Gr. S:, 1-163: “The judge or court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process, or proceeding, by adding or.striking out the name-of any party; by correcting a mistake in the name of a party,.or a mistake in other respect; by inserting other allegations material to the case; or when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the fact proved.”
Hides v. Nivens,
210 N. C., 44, 185 S. E., 469;
Bailey v. Roberts,
208 N. 0., 532,181 S. E., 754;
Mann v. Hall,
163 N. C., 50, 79 S. E., 437;
Robeson v. Hodges,
105 N. Q., 49, 11 S. E., 263;
Pear.ee v. Mason,
78 N. C., 37;
Garrett v. Trotter,
65 N. C., 430. “The power of the court to amend process and pleading, both by statute and under the decisions of this Court, is ample.”
Rushing v. Ashcraft,
211 N. C., 627, 191 S. E., 332. The statute allows “amendments on a scale so liberal that it may well be said ‘anything may be amended at any time.’ ”
Pearson, C. J.,
in
Garrett v. Trotter, supra.
In the absence of showing that the rights of innocent third persons would be injuriously affected, the amendment relates back to the commencement of the action.
Lee v. Hoff,
221 N. O., 233, 19 S. E. (2d), 858;
Lefler v. Lane,
170 N. C., 181, 86 S. E., 1022.
Upon another ground we think the judgment below should be upheld. The appellant, who purchased the land at the sale under the commissioner’s announcement that it included 1.3 acres and transferred his bid to the movents with that understanding, was equitably estopped to challenge the ruling of the court, ■ as was also -the other appellant who likewise was a party to -the sale and a recipient of its benefits.
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DeviN,
J.
The defendants’ appeal from the judgment below was based solely upon the ground that the judgment of the clerk of the Superior Court was void for want of authority, and that its affirmance by the judge could not give it life. It was contended that the motion of the appellees was to correct the record so as to include 1.3 acres of land omitted from the petition and orders by mistake, and that the findings of fact made out a case which required the aid of an equity which the clerk was without power to administer.
It is true the clerk has only such jurisdiction as is given by statute,
Moore v. Moore, ante,
552;
Beaufort County v. Bishop,
216 N. C., 211, 4 S. E. (2d), 525;
McCauley v. McCauley,
122 N. C., 288, 30 S. E., 344, and that he is not vested with power affirmatively to administer an
equity except in those cases where it is specially- conferred by statute,
Cheshire v. Church,
221 N. 0., 205, 19 S. E. (2d), 855;
High v. Pearce,'
220 N. 0., 266, 17 S. E. (2d), 108, but that does not mean the judgment of the Superior Court in this case is necessarily void. It is expressly provided by statute (G-. S., 1-276) that “whenever a civil action or special proceeding begun before the clerk of a Superior Court is for any ground whatever sent to the Superior Court before the judge, the judge has jurisdiction.” Even in those cases where the clerk is without jurisdiction to make the decree, if the cause comes within the general jurisdiction of the Superior Court and invokes the proper exercise of its power, by virtue of this statute the judge upon appeal may proceed to consider and determine the matter. This statute since its enactment in 1887 has been upheld and applied by this Court in numerous cases:
Lidie v. Chappell,
111 N. 0., 347, 16 S. E., 171;
Elliott v. Tyson,
117 N. C., 114, 23 S. E., 102;
Ledbetter v. Pinner,
120 N. C., 455, 27 S. E., 123;
Faison v. Williams,
121 N. C., 152, 28 S. E., 188;
Boseman v. Boseman,
127 N. C., 494, 37 S. E., 518;
Oldham v. Bieger,
145 N. C., 254, 58 S. E., 1091;
Wooten v. Cunningham,
171 N. C., 123, 88 S. E., 1;
Perry v. Perry,
179 N. C., 445, 102 S. E., 772;
Hall v. Artis,
186 N. C., 105, 118 S. E., 901;
In re Estate of Wright,
200 N. C., 620, 158 S. E., 192;
Spence v. Granger,
207 N. C., 19, 175 S. E., 824;
Bynum v. Bank,
219 N. C., 109, 12 S. E. (2d), 898;
Cody v. Hovey,
219 N. O., 369, 14 S. E. (2d), 30;
Perry v. Passenger,
219 N. O., 838, 15 S. E. (2d), 865;
Cheshire v. Church,
221 N. C., 205 (208), 19 S. E. (2d), 855;
Wilson, Ex Parte,
222 N. C., 99, 22 S. E. (2d), 262.
Where the clerk exceeds his authority,
Hodges v. Lipscomb,
133 N. C., 199, 45 S. E., 556, or has no jurisdiction,
Boseman v. Boseman, supra; Williams v. Dunn,
158 N. O., 399, 74 S. E., 99, and the cause for any ground is sent to the judge, the judge may retain jurisdiction and dispose of the cause as if originally before him.
Perry v. Passenger, supra. Stafford v. Harris,
72 N. O., 198, decided prior to the Act of 1887, and upon somewhat different facts, is not in point.
In the case at bar the matter was properly presented by a motion in the cause by the purchaser at the partition sale.
Wilson, Ex Parte, supra.
The facts were not controverted. Manifestly it was the intention of all the parties that all the lands of decedent be included in the sale. By mistake a tract of 1.3 acres covering a part of the mill pond was omitted from the specific description in the petition. However, it was announced at the sale that this was included in the lands being sold, and upon that statement the purchase was made by the appellant Ricks Leggett, and with that knowledge the bid was transferred and deed made to the movents and consideration paid. "With that knowledge proceeds of the sale were received by all the parties, including the appellants.
While the defendants excepted generally to the clerk’s findings of fact, no objection to any specific finding was noted. This was insufficient.
Sturtevant v. Cotton Mills,
171 N. C., 119, 87 S. E., 992;
Rawls v. Lupton,
193 N. C., 428, 137 S. E., 175;
Wilson v. Robinson, post,
851; 3 Am. Jur., 129. No evidence
contra
was offered or suggested. The only exception to the action of the Superior Court judge was to the signing of the judgment. ,A11 the parties were before the court. There were no issues of fact. No rights of purchasers for value or without notice had arisen. The appellants in their brief raise only the question of the power of. the clerk to grant the relief prayed for in the motion. Upon these facts the Superior Court in the exercise of general jurisdiction had power to permit the amendment of the petition
nunc pro tunc
to conform to the intention of all the parties, plaintiffs and defendants.
The power of the court to permit amendment is expressly conferred by Gr. S:, 1-163: “The judge or court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process, or proceeding, by adding or.striking out the name-of any party; by correcting a mistake in the name of a party,.or a mistake in other respect; by inserting other allegations material to the case; or when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the fact proved.”
Hides v. Nivens,
210 N. C., 44, 185 S. E., 469;
Bailey v. Roberts,
208 N. 0., 532,181 S. E., 754;
Mann v. Hall,
163 N. C., 50, 79 S. E., 437;
Robeson v. Hodges,
105 N. Q., 49, 11 S. E., 263;
Pear.ee v. Mason,
78 N. C., 37;
Garrett v. Trotter,
65 N. C., 430. “The power of the court to amend process and pleading, both by statute and under the decisions of this Court, is ample.”
Rushing v. Ashcraft,
211 N. C., 627, 191 S. E., 332. The statute allows “amendments on a scale so liberal that it may well be said ‘anything may be amended at any time.’ ”
Pearson, C. J.,
in
Garrett v. Trotter, supra.
In the absence of showing that the rights of innocent third persons would be injuriously affected, the amendment relates back to the commencement of the action.
Lee v. Hoff,
221 N. O., 233, 19 S. E. (2d), 858;
Lefler v. Lane,
170 N. C., 181, 86 S. E., 1022.
Upon another ground we think the judgment below should be upheld. The appellant, who purchased the land at the sale under the commissioner’s announcement that it included 1.3 acres and transferred his bid to the movents with that understanding, was equitably estopped to challenge the ruling of the court, ■ as was also -the other appellant who likewise was a party to -the sale and a recipient of its benefits. A party who participated in the sale of property in which he had an interest and who stood by while it was announced that the property being sold included a certain material element, thereby inducing another to purchase, and who
accepted tbe benefit of tbe sale, may not be permitted thereafter to take an inconsistent position to tbe injury of tbe purchaser, or be beard to resist tbe motion to amend. 19 Am. Luí., 640, ef
seq.; Textile Corp. v. Hood,
206 N. 0., 782 (790), 175 S. E., 151;
Bank v. Winder,
198 N. C., 18, 150 S. E., 489;
Trust Co. v. Wyatt,
191 N. 0., 138, 131 S. E., 311;
Watford v. Pierce,
188 N. O., 430, 124 S. E., 838;
Auto Co. v. Rudd,
176 N. O., 497, 97 S. E., 477;
Holloman v. R. R.,
172 N. C., 372, 90 S. E., 292;
Allison v. Kenion,
163 N. 0., 582 (587), 79 S. E., 1110;
Barker v. R. R.,
125 N. C., 596, 34 S. E., 701;
Shatiuck v. Cauley,
119 N.' C., 292, 25 S. E., 872;
Gill v. Denton,
71 N. C., 341;
Saunderson v. Ballance,
55 N. 0., 322;
Saylor v. Coal Corp.,
205 Ny., 724, 50 A. L. B., 666, annotations 688,
et seq.
This principle rests upon tbe necessity of compelling tbe observance of good faith.
Thomas v. Conyers,
198 N. C., 229, 151 S. E., 270. “Its compulsion is one of fair play.”
McNeely v. Walters,
211 N. O., 112, 189 S. E., 114.
With tbe petition in this proceeding amended so as to supply an omission, in accordance with tbe manifest intention of all parties, there was no question that tbe court bad tbe inherent power to amend its decree to conform thereto.
Cheshire v. Church,
222 N. O., 280, 22 S. E. (2d), 5.66;
Ragan v. Ragan,
212 N. O., 753, 194 S..E., 458;
Beam v. Bridgers,
111 N. 0., 269, 16 S. E., 391;
Brooks v. Stephens,
100 N. O., 297, 6 S. E., 81;
Cook v. Moore,
100 N. C., 294, 6 S. E., 795;
Maxwell v. Blair,
95 N. C., 317;
Strickland v. Strickland,
95 N. C.,.471.
Tbe result below seems to have been in accord with well considered principles of equity and justice, and will not be disturbed.
Affirmed.