9 S.E.2d 371 | N.C. | 1940
Civil action in ejectment.
Plaintiff seeks to recover possession of a house and lot situate on the Lexington-Thomasville Highway in Davidson County. In deraigning title, he offered in evidence commissioner's deed tending to show that he purchased the property at a judicial sale on 12 January, 1939. He then offered registry of deed dated 1 October, 1912, vesting title in Robert C. *703 Sink. Further, that on 10 October, 1938, John A. Sink brought suit in the Superior Court of Davidson County against Robert C. Sink and wife, defendants herein, to recover $561.46 due for materials furnished and used in the construction of their house on the lot in question and to enforce a material-furnisher's lien upon the premises. This action was duly prosecuted to judgment, commissioner appointed, sale had at which the plaintiff became the last and highest bidder for $1,500, sale confirmed, deed executed by the commissioner, demand by plaintiff for possession, possession denied, and the present action was then instituted.
From judgment of nonsuit entered at the close of plaintiff's evidence, he appeals, assigning error.
It is the position of the defendant that the commissioner's deed under which plaintiff claims title to the locus in quo is void for the reason that the sale of the premises was had without first allotting to the defendant his homestead. Fulton v. Roberts,
It may be that upon a proper showing, the case will ultimately be controlled by the decision in Cumming v. Bloodworth,
Reversed. *704