37 S.E. 336 | N.C. | 1900
Lead Opinion
DEPENDANT BOBBITT’S APPEAL.
This is an action for the recovery of the possession of land. The plaintiff claimed, through a sale under an execution, and the sheriff’s deed made in pursuance thereof, of date 10th of April, 1870, and registered on the 31st day of December, 1885 — the last day of grace, under chapter 147, of the Laws of 1885. She (the plaintiff) had had possession from the date of the sheriff’s deed, until •about 1885, since which time the defendants have been in possession. The defendants do not set up' any claim to the land. They have no paper title, and do not claim under possession and color of title; and they have not been in possession long enough to confer title by presumption of grant.
The contention of the plaintiff is that the recital in the sheriff’s deed of the execution is substantive evidence — prima facie, to be sure, in the sense that it is not conclusive as an official act, but yet primary in its character — and alone sufficient, to prove the existence of the execution, unless rebutted by other evidence of the defendant. The defendant insists that the plaintiff in this action, who was not the plaintiff in the execution, should have shown the execution itself, and the sheriff’s return thereon, as the best evidence that the execution had been issued, and was in his hands at the time of the sale; or that, if the execution was lost, then, upon proof of that fact, the recital in the sheriff’s deed could
Tire main question in tbe case then is, is tbe recital in tbe sheriff’s deed alone — without any other testimony — sufficient evidence to prove (the defendant having introduced no evidence) tbe existence of tbe execution? Or, to put it in another way, should the plaintiff have been required to show tbe execution itself, and tbe return of tbe sheriff on it, as tbe best evidence, or, in tbe event of its having been lost, to have proved tbe loss, and then to have introduced secondary evidence, such as tbe sheriff’s recital in tbe deed, or tbe testimony of tbe sheriff, or other collateral evidence tbat tbe execution bad been issued ? In Hamilton v. Adams, 6 N. C., 161, it was decided tbat a purchaser of land at execution sale bad to show both a judgment and an execution. Tbe English rule, at tbe time when tbat decision was rendered, was tbat execution only was necessary to be shown where tbe purchaser was a stranger to tbe action. In Rutherford v. Raburn, 32 N. C., 144, it was said tbat tbe inconveniences attending tbe following out the principle of Hamilton v. Adams were so numerous and mischievous as to call for legislative action, and tbat in 1848 a bill was enacted into a law, entitled “An Act to secure tbe title of purchasers of land sold under execution;” and tbe Court in Rutherford v. Raburn, supra, in its construction of tbat Act of Assembly, restored the rule of tbe common law, as it was understood to have prevailed here before tbe decision in Hamilton v. Adams.
But to return to tbe main discussion: Tbe plaintiff’s
The brief of Mr. Spruill, for the defendants, was well considered and interesting, and an examination of the authorities cited by him has resulted in the conclusion on our part that, under the earlier decisions of this Court, the recital in a sheriff’s deed under which he sold real estate could be used only as secondary evidence, in cases where the original return and execution itself could not be procured, and after proof of its having been issued had been made. That rule, however, has been modified by more recent decisions, until it seems to be the settled doctrine of this Court that the recitals in a sheriff’s deed are prima facie evidence of the facts therein stated, and will be sufficient evidence upon which the plaintiff can recover, unless it is rebutted by proof to the contrary. In the present case the sheriff’s deed was color of title, and the plaintiff had been in possession through her agent for more than seven years, and title had been shown to have been out of the State. But on the trial the deed was not introduced as color of title, but as a regular
No error.
DEFENDANT MaSSENBuR&S APPEAL.
The defendant in this action (in the form and manner as they are represented by the defendant Massenburg) claim the land described in the complaint, through the will of Jeremiah Ingram, and by a deed from Joseph J. Ingram, a son of Jeremiah, to the defendant’s grantee. The testator in the will devised the land to his widow, Nancy, and his •children, Samuel, Joseph, Joshua, and Pressly, jointly between them (they thereby becoming tenants in common), and the will was proved in due form in the county of Franklin, in the year 1826, and the deed from Joseph was dated the 9th of December, 1844. Neither Joseph, nor any of those who claim under him, has ever been in possession of the land, and as the plaintiff has shown title out of the State, and the sheriff’s deed for the same, she is entitled to possession of the land.
No error.
Concurrence Opinion
(concurring). I concur in the opinion of the Court, that the judgment should be affirmed for the reasons stated in this opinion. I do not think it necessary to determine whether the statements in the deed were primary •or secondary evidence, or whether they proved the issuance of an execution, or only created a presumption of the issuance of an execution. It would have been necessary to •determine these questions if it had been necessary for the plaintiff to rely upon the sheriff’s deed as title to the land, unaided by possession. But this was not the case. The plaintiff became the purchaser of this land in 1870, took the sheriff’s deed therefor, went into possession at once, and
Lead Opinion
DEFENDANT BOBBITT'S APPEAL. This is an action for the recovery of the possession of land. The plaintiff claimed, through a sale under an execution, and the sheriff's deed made in pursuance thereof, of date 10 April, 1870, and registered on 31 December, 1885 — the last day of grace, under chapter 147, Laws 1885. She (the plaintiff) had had possession from the date of the sheriff's deed, until about 1885, since which time the defendants have been in possession. The defendants do not set up any claim to the land. They have no paper title, and do not claim under possession and color of title; and they have not been in possession long enough to confer title by presumption of grant. The sheriff's deed was introduced in evidence by the (275) plaintiff, and the recital therein of the execution, under which the sale was made, was the only evidence tending to show that such an execution had ever had existence, *188 if we may except the judgment docket, from which it appeared that numerous executions had been issued thereon in the case. The judgment docket, however, made no reference whatever to the execution recited in the sheriff's deed. If any execution ever issued, like that recited in the sheriff's deed, it does not appear in the Clerk's office from the judgment or execution docket; for the Clerk, in his examination, testified that no such execution could be found in his office, for ten years each way, in all files where they would likely be — files marked "Fi. Fas.," or "Executions," from 1870. After unsuccessful motions to dismiss the action, under chapter 109, Laws 1897, and chapter 131, Laws 1899, his Honor instructed the jury, if they believed the evidence, to answer the issues in the affirmative. The issues were: (1) Is the plaintiff the owner and entitled to the possession of the land described in the complaint? (2) Do the defendants wrongfully withhold the possession thereof from the plaintiff?
The contention of the plaintiff is that the recital in the sheriff's deed of the execution is substantive evidence — primafacie, to be sure, in the sense that it is not conclusive as an official act, but yet primary in its character — and alone sufficient, to prove the existence of the execution unless rebutted by other evidence of the defendant. The defendant insists that the plaintiff in this action, who was not the plaintiff in the excution, [execution] should have shown the execution itself, and the sheriff's return thereon, as the best evidence that the execution had been issued, and was in his hands at the time of the sale; or that, if the execution was lost, then, upon proof of that fact, the recital in the sheriff's deed could have been introduced as prima facie evidence, but of a secondary nature, (276) and admissible only because of the inability of the party offering it to procure the best evidence. It was incumbent on the plaintiff to show that an execution had been issued, that the same had been levied on the land, and that the land had been sold under the execution.
The main question in the case then is, is the recital in the sheriff's deed alone — without any other testimony — sufficient evidence to prove (the defendant having introduced no evidence) the existence of the execution? Or, to put it in another way, should the plaintiff have been required to show the execution itself, and the return of the sheriff on it, as the best evidence, or, in the event of its having been lost, to have proved the loss, and then to have introduced secondary evidence, such as the sheriff's recital in the deed, or the testimony of the sheriff, or other collateral evidence that the execution had *189
been issued? In Hamilton v. Adams,
But to return to the main discussion: The plaintiff's counsel cited numerous authorities to the effect that a recital in a sheriff's deed that he had the execution at the time of sale was prima facie evidence of that fact, and we have (277) found other authorities from our court to the same effect, but in each and all of those cases the execution was either proved by other evidence than the recitals in the sheriff's deed, or it was shown that the execution had been issued and was lost. The first case in our Reports which we have been able to find, in which the question as to whether the recitals in a sheriff's deed of the execution, levy, and sale were evidence of these facts, was Owen v. Barksdale,
The brief of Mr. Spruill, for the defendants, was well considered and interesting, and an examination of the authorities cited by him has resulted in the conclusion on our part that, under the earlier decisions of this Court, the recital in a sheriff's deed under which he sold real estate could be used only as secondary evidence, in cases where the original return and execution itself could not be procured, and after proof of its having been issued had been made. That rule, however, has been modified by more recent decisions, until it seems to be the settled doctrine of this Court that the recitals in a sheriff's deed are *192 prima facie evidence of the facts therein stated, and will be sufficient evidence upon which the plaintiff can recover, unless it is rebutted by proof to the contrary. In the present case the sheriff's deed was color of title, and the plaintiff had been in possession through her agent for more than seven years, and title had been shown to have been out of the State. But (281) on the trial the deed was not introduced as color of title, but as a regular paper title, and we have had to consider the case in the aspect presented by the record.
No error.
DEFENDANT MASSENBURG'S APPEAL.
The defendant in this action (in the form and manner as they are represented by the defendant Massenburg) claim the land described in the complaint, through the will of Jeremia Ingram, and by a deed from Joseph J. Ingram, a son of Jeremiah, to the defendant's grantee. The testator in the will devised the land to his widow, Nancy, and his children, Samuel, Joseph, Johsua and Pressly, jointly between them (they thereby becoming tenants in common), and the will was proved in due form in the county of Franklin, in 1826, and the deed from Joseph was dated 9 December, 1844. Neither Joseph, nor any of those who claim under him, has ever been in possession of the land, and as the plaintiff has shown title out of the State, and the sheriff's deed for the same, she is entitled to possession of the land.
No error.