Frink v. Frink

It is the ordinary duty of the clerk of a court of record to extend the record of the proceedings in each suit, from the process and pleadings on file, and from the minutes and entries on the dockets, and he can resort to no extrinsic evidence for that purpose. But the court has authority to amend its records so as to make them conform to the actual facts and truth of the case; and may in its discretion, receive and act upon any competent legal evidence.

Petition to amend the record of a judgment in favor of the defendant. The facts appeared to be as follows : Mrs. Olivia Frink, the defendant, is the widow of J. N. Frink, who died without children some ten or twelve years since. J. N. Frink’s father, G-. Frink, conveyed to him two tracts of land in Newington, reserying to himself and his wife a life estate; J. N. Frink survived his father, but died leaving his mother. After her decease, Mrs. Frink, the defendant, brought her writ of entry against the plaintiff, Darius Frink, for the whole of these tracts of land. At the September term of the court of common pleas, 1854, the case came on for trial, as it was understood, upon the general issue. Upon proof of the foregoing facts, a question arose as to the extent of the plaintiff’s interest, and by consent of parties, a verdict was directed for the plaintiff, for one half of the demanded «premises; the presiding judge proposing to reserve and transfer certain questions of law, in case ho should find that they had not been decided. He wrote to one of the judges of the supreme court, and learned that it had been decided that the wife, in such a case, was entitled to one half the real estate; and he took no further order, leaving the judgment, provisionally ordered on the verdict, to stand. These facts distinctly appeared from the evidence, and from the original notes of the court and counsel for the defendant. It does not appear from the files of the court, or otherwise, that any plea was in fact filed, or any verdict drawn up or signed. The clerk entered upon his docket, “verdict for the plaintiff',” without saying “for half the premises” as he might properly have done, and being subsequently applied to, he issued a writ of possession to Mrs. Frink for the whole of the demanded premises. This writ was not executed, and an alias writ issued, upon which there is a return, dated March, 1856, of possession delivered. These writs were improperly issued by the clerk, without ascertaining that the proper papers were on file to warrant them. And the whole difficulty has grown out of this neglect. In the spring of 1860, the attention of the clerk of the supreme court, to whose office the records of the court of common pleas had been by law transferred, was called to the case by Mr. Smith, who now appears as counsel for the defendant, and upon his own account, as her assignee of this property, who examined the records and files of the term, caused one or both of the writs of possession, which had been in the hands of the defendant’s counsel, to be returned to the files, and called upon the clerk for an extended copy of the record. The clerk, who had no personal knowledge of the case, and who had been unable to find either plea or verdict, at the law term in August, 1861, submitted the papers to the chief justice, and asked his advice as to extending the record. The chief justice wrote to him that he could extend the record upon the papers he had, assuming that, under the general rule, the plea must be the general issue, and the docket and writs of execution both showing a general verdict for the plaintiff’. It was not- suggested that there was any question as to the amount of interest found by the verdict, or any question as to any matter except the manner of extending the record. Under this advice the clerk extended the record, showing a recovery of all the demanded premises, and then for the first time entered upon the docket the issuing of the writs of possession. These things were done without notice to the petitioner, or his counsel. In October following, the extension of the record became known to the petitioner and his counsel; and this petition was filed on the 21st of that month. At the December term following, the defendant appeared, and the parties proceeded to take their proofs. No controversy was made as to the facts thus stated, but Mr. Smith contended, in effect, that he was a bond fide purchaser without notice of any defect of Mrs. Frink’s title as it appeared by the writ of possession of the whole property, and that the amendment of the record could not be made without injustice to him. To this point he offered his own deposition, by which it appeared that he was the only brother of Mrs. Frink, and lived near her; that in 1859 he advanced money to her to the amount of $500; and that she applied to him to purchase this property, referring him for her title to the writ of possession and service. He visited the court records at Exeter, and found the writ of possession awarded, docketed and served by an officer, giving her "the lawful possession of the premises ; and in October, 1859, after this examination, he agreed to pay her $2500 for her title; she delivered the deed, and he paid her the amount, $2000 of which was in bonds, wTell secured. He says, on cross-examination; Mrs. Frink derived her title from her husband, as I understood. I have no knowledge of her title, except as appears from the suit. I only know from hearsay the ground on which the suit was based, not having been connected with the case at any time, unless asked by her for some advice, of which I have no recollection in particular. Before taking my deed, I examined the docket only, and the writ of possession and officer’s return. I have no recollection of seeing any other papers, or turning to any other record of the case. I am certain I saw nothing to impart any distrust as to the title, as represented by the docket and writ of possession. My impression is, I saw the writ and declaration. I can not recollect that I saw any verdict, or plea. I have no recollection of any conversation between myself and the clerk. I wrote one or more letters to D. Frink, and perhaps to Mr. Hatch, relating to the controversy. I can not define the nature or reservations of the father’s deed, but I doubtless knew them in the early stages of the litigation. Mrs. Frink made no representations of her interest, except to refer me to the writ of possession, of which she had a copy. I obtained the writ of possession and officer’s return of Mr. Hackett, and carried it to the clerk’s office. I am unable to say what was the extent of Mrs. Frink’s possession, but am sure she had claimed to be in possession of portions of the premises, and had resided there for short intervals. I understood the property to be of the value of $2500 (but states no inquiries). I understood Mrs. Frink’s title was derived from the title of her husband, but of the particular legal rights upon which she had recovered the property, as represented in the writ of possession, I was not informed. How much she claimed as heir, how much as widow’s dower, and how much by any other relation, I did not learn. My profession is the law. I may have become acquainted with the extent, on which each side asserted and denied the rights of the other to he, but after the suit was ended, and at the time I purchased, I had lost all particulars of the controverted points. I ■wrote to an attorney in Exeter to procure and send a copy of the judgment and whole record to Mr. Hackett, for the purpose of my suit againt I). Frink for the premises, and was subsequently informed that the record had to be completed; all steps needful to that were taken by Mr. Hackett, as I suppose. Attached to Mr. Hatch’s deposition is a copy of a letter of Mr. Smith to Mr. Hackett, dated June 14, 1857, in which he says: “ In respect to Mr. Frink’s proposition, she (Mrs. Frink) says she is willing to make a division of the farm by two or three disinterested men, neither belonging to Newington, and perfect titles to each other in fee, thereby waiving all questions of dower. * * One half of the Frink note can come out of her half of the property, ditto of Mathes’ and Morrison’s claims. Now she is willing to pay her half of each, and let them pay their half of each, * * then the rest of the farm, * * one half belongs to Olivia (Mrs. Frink), and the other half to the Frinks. * * Olivia is willing for the judge of probate to appoint the men to divide the farm, or she will select one, and the Frinks one, and these two, if they differ, may select the third.” At the foot of this letter is a note of Mrs. Frink to Mr. Hackett referring to it, and asking his attention to it. . Also, a letter from Mr. Smith to D. Frink, dated March 30, 1858, in which he says: “ Mrs. Frink is here, and will go to take possession of the farm to-morrow or next day, and put a tenant on it. Of course no decision can he made until the debts are ascertained, and an amount of the farm sold equal to paying them off, and then the one half that will belong to her of the remainder will be set off'.” Also, a copy of a letter from Mr. Hatch, to Mr. Smith, dated March 16, 1859, containing proposals of compromise, one of which is, “(3) The real estate shall be equally divided by referees to be agreed on by the parties.” And a letter of Mr. Smith to Mr. Hatch, dated March 27, 1859, acknowledging the receipt of his letter, and refusing to negotiate further.