Ferguson v. . WrightFerguson v. . Wright
- Reporters:
- ,
- Before:
- Avery
If Sаmuel C. Ferguson was a resident of the State of North Carolina on the 4th of October, 1869, when his land was sold upon a Justice’s judgment, rendered on the 11th of August, 1869, and docketed in the Superior Cоurt on the 14th of August, 1869, he was entitled to a homestead, and unless he had a homestead already allotted to him in other *543 lands, the sale of his interest in the land in controversy, under such‘execution, was null and void. It was conceded that no other land had been allotted to him. ’ Hе resided in North Carolina in 1866, and the summons was served on him in the case -wherein judgment was rendered, and execution and sale followed in the summer of 1869. We find positive and direct testimony tеnding to show these facts and nothing more bearing upon the question of his domicile, though it was stated in general terms that there was additional testimony.offered for the defendants.
■ The Court, upon objection, properly excluded the testimony offered that Samuel C. Fergusоn was generally reputed in his family, or in the neighborhood in which he lived in 1866, to have removed to and become a resident of the State of Georgia, where he died in August, 1870. Evidence аs to the residence of a person falls within the general rule that hearsay testimony is inаdmissible, and no sufficient reason can be adduced for making it an exception like testimony as to pedigree. The other evidence upon the same question seems to have been fairly submitted to the jury. It being conceded that Ferguson resided in Cherokee County in 1866, the presumption was that he continued to make this State his home, and the jury were left tо determine whether the evidence was sufficient to rebut it, since, in .the absence of suсh proof, the- law assumed that his domicile remained unchanged. 5 Am. & Eng. Enc., p. 971; Lawson on Presump. Ev., p. 172, rule 30.
■ The defendants offerеd no testimony tending to show that the judgment was recovered upon a debt- created prior to 1868, and as we must assume that the sale was made to satisfy an obligation incurred after the ratification of the Constitution, and without allotting homestead, it was void. Long v. Walker, 105 N. C., 90; Lloyd v. Lloyd, at this term.
Whether the defеndants or those under whom they claim entered upon the land in 1869 or 1870 is not material. If *544 the exеcution sale of Samuel’s one undivided eighth was invalid, the deed to Brittain, under which they claimed, passed only the seven-eighths of the land which had descended on the death of Robert Ferguson to his other children. The defendants had not been in possession twenty years when this аction was brought in 1889, and therefore the presumption had not arisen that the plaintiff as а co-tenant had been evicted. Caldwell v. Neely, 81 N. C., 114; Ward v. Farmer, 92 N. C., 93. The cases of McCulloh v. Daniel, 102 N. C., 529, and Amis v. Stevens, 111 N. C., 172, which were relied on by defendants’ counsel to sustаin his position, were carefully distinguished by the Court in both opinions from those already cited in suрport of the view of the question which we have taken. The distinction was that in the one сase the occupant entered and held under title derived mediately or immediatеly through conveyances from a portion of the tenants in common, to whom the land had passed by descent or purchase, while in the other he had bought at Sheriff’s sale a сlaim purporting to be adverse to all of such tenants, and had entered and held adversely for more than seven years.
The deed of Thomas M. Ferguson and others to Brittain, though it рurported to convey all of the interest in the land, had only the effect of putting Brittain in the relation to Sam-úel Ferguson previously occupied by his grantors. Thomas C. Ferguson, aftеr procuring a conveyance from King for such interest as had passed to him by the Sheriff’s void deed, joined the heirs of Robert Ferguson in conveying to‘Brittain. As to the individual interest of Samuel Ferguson, Thomas Ferguson and Brittain stood in the same relation to him as had been sustained by King. The occupation and undisturbed enjoyment of the rents and profits by Brittain or those claiming undеr him for a less time than twenty years, though under a deed purporting to convey the entire estate, did not bar the action of the heirs of Samuel Ferguson, if the *545 sale by the Sheriff was void. Breden v. McLaurin, 98 N. C., 307; Hicks v. Bullock, 96 N. C., 164. But a ease more directly in point is Page v. Branch, 97 N. C., 97, where Justice Davis, delivеring the opinion of the Court, laid down the principle that one tenant in common cannot make the possession adverse to his co-tenant by conveying the entire estate, because his bargainee only acquires such estate as the bar-gainor can convey. We see no reason why the registration of the deeds from the Sheriff to King, and from the latter to Thomas Ferguson, should give any additional force or effect to the subsequent conveyance to Brittain. There is no prin-’ ciple which we can invoke that would give to the registration at that date, if now, the effect of an ouster.
For the reasons stated we conclude that’there Was
No Error.