Short Answer

In North Carolina, you typically correct a bad legal description on a commissioner’s deed by asking the Clerk of Superior Court in the original case to enter an order correcting the record and authorizing a corrective commissioner’s deed. If the problem is a clerical mistake, the clerk can usually correct it on motion without re-running the sale. If the error is substantive (it changes what was sold), the court may require new findings, notice to parties, or further relief before a corrected deed can be issued.

Understanding the Problem

You want to know how to correct the legal description on a commissioner’s deed under North Carolina law. Here, an attorney found a discrepancy after a county foreclosure case where the client is the grantee. The decision point is whether, and how, the Clerk of Superior Court can correct the deed through the original case so the record accurately reflects what the court authorized to be sold and conveyed.

Apply the Law

North Carolina treats court-ordered sales (including partition sales, certain foreclosures, and sales in special proceedings) as judicial sales managed through the Clerk of Superior Court under Article 29A. The clerk appoints the commissioner, oversees the sale process, and enters orders. A mismatch in the deed’s legal description is handled in the same file: simple clerical mistakes can be corrected by motion; if the error would change the property or interests conveyed, the court may require additional relief and notice. If disputes of fact or equitable relief are raised, the matter is transferred to a superior court judge.

Key Requirements

• Pinpoint the type of error: Determine whether the description error is clerical (e.g., transposed lot number) or substantive (e.g., wrong tract boundaries).
• Use the original case file: File your request in the special proceeding, foreclosure, or judicial-sale file where the commissioner was appointed and the sale confirmed.
• File a targeted motion: Ask the clerk to correct the record and authorize a corrective commissioner’s deed; attach a proposed order, proposed corrective deed, and supporting affidavits/surveys.
• Give proper notice: Serve parties of record and affected lienholders; the clerk may require formal service and a brief hearing before entering relief.
• Match the relief to the error: Clerical mistakes can usually be corrected on motion; substantive errors may require amended findings, expanded notice, or further judicial action.
• Know transfer triggers: If factual disputes or equitable relief are raised, the clerk must transfer the special proceeding to superior court for a judge to decide.
• Mind special confirmations: If minors or incompetents were involved, a superior court judge (not the clerk) must confirm the sale before a correction is finalized.

What the Statutes Say

• N.C. Gen. Stat. § 1A-1, Rule 60 (Relief from judgments/orders) – Allows correction of clerical mistakes and, in some cases, other relief on motion.
• N.C. Gen. Stat. § 1-339.1 (Judicial sales; applicability) – Judicial sales are governed by Article 29A and overseen by the clerk.
• N.C. Gen. Stat. § 1-339.28 (Judge confirmation in certain cases) – Requires judge confirmation in specific circumstances (e.g., minors/incompetents).
• N.C. Gen. Stat. § 1-301.2 (Transfer of special proceedings) – Transfers to superior court when factual disputes or equitable relief arise.

Analysis

Apply the Rule to the Facts: Because the commissioner’s deed came out of a county foreclosure case, start in that file at the Clerk of Superior Court. If the mismatch is a clerical error (for example, a digit transposed in a lot number), a Rule 60(a)-style motion asking the clerk to correct the record and authorize a corrective commissioner’s deed is usually appropriate. If the discrepancy alters what was sold (for example, it substitutes a different tract), expect the court to require broader relief and notice, and possibly involvement of a superior court judge.

Process & Timing

1. Who files: The grantee or the commissioner (often through counsel). Where: Clerk of Superior Court in the county where the judicial sale/foreclosure file is pending. What: Motion to Correct Legal Description and Authorize Corrective Commissioner’s Deed with a proposed order and proposed corrective deed (no standard AOC form; draft your own). When: File as soon as the error is discovered; some types of post-judgment relief have short time limits.
2. The clerk reviews the motion, ensures proper notice, and may calendar a brief hearing. Counties vary, but allow a few weeks for notice and a hearing date if required.
3. If granted, the court enters an order authorizing the commissioner to execute a Corrective Commissioner’s Deed. The commissioner signs and you record the corrective deed (referencing the original book/page and the court’s order). Update tax, mapping, and title records as needed.

Exceptions & Pitfalls

• Clerical vs. substantive: If the correction would change the property or interests conveyed, the court may require new findings, additional notice, or even re-advertising/re-running aspects of the sale.
• Notice and parties: Serve all parties of record and affected lienholders. If issues of fact or equitable claims are raised, the clerk must transfer the matter to a superior court judge.
• Special confirmations: Where minors or incompetents were involved in the sale, judge confirmation is required before a correction can be finalized.
• Recording hurdles: Registers of Deeds often require a court order authorizing a corrective commissioner’s deed; submit the order with the corrective deed.
• Wrong file: Always use the original sale file (partition, tax foreclosure, or other judicial sale). Starting a new, separate action can delay relief and complicate title.

Talk to a Partition Action Attorney

If you’re dealing with a flawed legal description on a commissioner’s deed from a court-ordered sale, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at [919-341-7055].

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.