Opinion · Supreme Court of North Carolina

Doe on the Demise of Brown v. Smith

53 N.C. 331

Type: Opinion
Court: Supreme Court of North Carolina
Jurisdiction: North Carolina
Date: 1861-06-05
Topic: general

Pearson, C. J. The exception to the competency of Turner as a witness on the side of the plaintiff, is well taken. The witness had a direct interest to support the title of Brown, because of his liability to him, in the event of his losing the-land by the provision of the statute, Revised Code, chap. 45, section 27. It does not appear from the case, as made out, that the deed of Turner to Smith, contained a warranty, and in the transfer of land, a warranty is-not implied; consequent *333 ly, there was no corresponding liability of the witness to Smith, so as to bring the question within the rule of a witness having an interest on both sides.

Citator

UpLaw has not yet analyzed Doe on the Demise of Brown v. Smith. The absence of a flag is not a finding that it is good law.

Cited by: 1 opinion

BROWNv. SMITH,53 N.C. 331(1861)

DOE ON THE DEMISE OF WILSON BROWN v. CALVIN.E. SMITH.

Supreme Court of North Carolina

(June Term, 1861.)

1. Where land has been sold as the property of A., under execution, and he has received a portion of the sum raised, which was over and above the call of the execution, he cannot be a witness for the purchaser in an action for the recovery of the land.

2. Where both parties in an action of ejectment claim title under the same person, the defendant cannot defeat the action by showing title in a third person, unless he has acquired such outstanding title or connects himself with it.

EJECTMENT, tried beforeHoward, J., at last term of ORANGE.

The lessor claimed title under a deed from the sheriff, executed on 28 October, 1858, by virtue of a sale under execution and judgment against one Turner for a debt contracted by him in January, 1854. He then showed a deed for the same land, executed by Turner to the defendant Smith, dated September, 1854, and then showed by Turner that the money recited in such deed as having been received by him had, in fact, not been paid; that no money or other thing of value had been (332) given to him by Smith for the land in question; that the deed had really been executed in August, 1855, during the session of Orange County court, and was antedated in order to defeat a judgment (in a bastardy case) that was rendered in that court on the day before. The defendant excepted to the competency of Turner, but the exception was overruled.

To prove title of Turner at the date of the judgment and execution, under which the plaintiff claimed, the defendant showed that at a sale under the judgment in the bastardy case the land in question had been bought by one Miller, and a deed executed to him on 26 July, 1856, that at such sale the land brought more money than was necessary to satisfy the execution, and the overplus was paid by Miller to Turner, who gave a receipt for the money.

In reply to this the plaintiff proved that Miller, at the sale above mentioned, had acted as the sheriff's deputy, and had employed one McCauley to buy the land for him; that McCauley bid off the land accordingly and assigned the bid to Miller.

His Honor charged the jury that the sale and purchase by Miller was, for the purpose of this action, a nullity, and that the admitted good character of Smith was not to be considered by them. Defendant excepted.

Verdict and judgment for plaintiff. Appeal by defendant.

Phillips for plaintiff.Norwood for defendant.Page 255

PEARSON, C. J.

The exception to the competency of Turner as a witness on the side of the plaintiff is well taken. The witness had a direct interest to support the title of Brown, because of his liability to him in the event of his losing the land by the provision of the statute, Rev. Code, chap. 45, sec. 27. It does not appear from the case as made out that the deed of Turner to Smith contained a warranty, and in the transfer of land a warranty is not implied; consequently, there was no corresponding liability of the witness to Smith so as to (333) bring the question within the rule of a witness having an interest on both sides. For this error there will be avenire de novo, and we are not at liberty to enter upon the question discussed at the bar and on which the case seems to have turned on the trial in the court below.

We will suggest, however, that there seems to be nothing to prevent the application of the principle that when both parties claim title under the same person the defendant cannot defend an action by showing title in a third person unless he has acquired such outstanding title or connects himself with it. This suggestion seems called for to prevent a repetition of what has occurred at this term — a point was fully argued, and yet upon examination the "Court found that it was excluded by a preliminary matter.

PER CURIAM. Error.Cited: Caldwell v. Neely,81 N.C. 116.