Opinion · Supreme Court of North Carolina

Doe on the Dem. of Hardin v. Cheek

48 N.C. 135

Type
Opinion
Court
Supreme Court of North Carolina
Jurisdiction
North Carolina
Date
1855-12-05
Topic
general

Nasii, O. J. Several points are embraced in Ids Honor’s charge. The first is decisive of the case, and renders it unnecessary to consider the others. The defendant claimed title to the land in dispute, under Archibald McNeil, who derived title under an execution sale made by the sheriff of Cumberland, by virtue of an execution against Charles Shearing, under whom the plaintiff claims title.

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5 opinions
HARDINv. CHEEK,48 N.C. 135(1855)
Doe on the dem. ofCHARLES HARDINvs. JOHN CHEEK.
Supreme Court of North Carolina
(December Term, 1855.)
Where the purchaser of land at a sheriff's sale is not the plaintiff in the judgment and execution at whose instance it is sold, no judgment need be shown.

The recitals in a sheriff's deed, of an execution, levy, and sale, areprima facieevidence of those facts. (Owenv.Barksdale, 8 Ire. Rep. 81, commented on.)
ACTION of EJECTMENT, tried before his Honor, Judge DICK, at the special term (Nov. 1855,) of Moore Superior Court.
The plaintiff showed a grant from the State to one John Tyson, dated 30th of September, 1748, for the land in controversy; also several mesne conveyances down to John Shearing, who, by deed dated 2nd of December, 1766, conveyed toPage 136Charles Shearing. The lessor of the plaintiff proved that he was the heir-at-law of Charles Shearing.

The defendant claimed title to the land in dispute by a regular series of conveyances from Archibald McNeil to himself. In the year 1775, the sheriff of Cumberland, one Malcom McNeil, sold this land at public auction to Archibald McNiel, and made him a deed for the same. The defendant offered in evidence the transcript of a record of the County Court of Cumberland, setting forth a memorandum on the docket, of a judgment at July term, 1774, against Charles Shearing, for costs in a suit that he had brought against one David Stroud, and which at that Court was "discontinued;" also afieri faciasissuing on this judgment, which was returned to January term, 1775, endorsed, "satisfied by sale." The sheriff's deed to Archibald McNeil recites that, "whereas, by sundry executions issuing from the county of Cumberland against Charles Shearing, for the sum, c.,directed and delivered"to him as sheriff, he levied on the land in question, and sold it; also containing the usual and proper terms of a sheriff's deed for land sold at execution sale.

It was insisted by the plaintiff, 1st. That there was no sufficient judgment shown. 2nd. That there was no evidence that this land was levied on and sold; and that the recitals in the sheriff's deed were not evidence of those facts. There were various other questions presented in the bill of exceptions and argued in this Court, which, from the view taken of the case by their Honors, become immaterial.

Upon the questions above presented, his Honor below charged the jury, that it was not necessary for a purchaser at a sheriff's sale, not being the plaintiff in the judgment, to show any judgment at all; but if the evidence satisfied them, that the sheriff of Cumberland actually levied the execution against Charles Shearing, on the land in controversy, and sold it at public sale, and Archibald McNeil was abona fidepurchaser for a valuable consideration, the title passed to ArchibaldPage 137McNeil, and defendant (claiming under him) was entitled to their verdict. Plaintiff excepted.

Verdict for defendant. Judgment and appeal.
Bryan, for plaintiff.KellyandHaughton, for defendant.
NASH, C. J.
Several points are embraced in his Honor's charge. The first is decisive of the case, and renders it unnecessary to consider the others. The defendant claimed title to the land in dispute, under Archibald McNeil, who derived title under an execution sale made by the sheriff of Cumberland, by virtue of an execution against Charles Shearing, under whom the plaintiff claims title. The sale was made in 1775. Charles Shearing died in 1786, and in 1788 his widow and children abandoned the possession of the land. The defendant showed a regular chain of title from McNeil to himself. The plaintiff objected that there was no sufficient judgment to warrant the issuing of the execution under which the sheriff of Cumberland sold the land in controversy; nor was there any evidence that the sheriff either levied on the land or sold it. His Honor charged the jury, that it was not necessary for a purchaser at a sheriff's sale (not being the plaintiff in the execution) to show the judgment on which the execution was founded. But if the evidence satisfied them that the sheriff actually levied the execution against Charles Shearing, on the land in controversy, and sold it at public sale, for a valuable consideration, to Archibald McNeil, then the title passed to him, and the defendant was entitled to their verdict.

The first branch of the charge is in conformity with the decision inRutherfordandRayburn, 10 Ire. 144. The evidence upon the second branch of the objection was the sheriff's deed to McNeil, in which he recites the levy and the sale. It was insisted that the recital in a sheriff's deed was no part of the deed, and was therefore no evidence of the fact recited. This objection was founded, we presume, on what fell from the Court in the case,Owenv.Barksdale, 8 Ire. Rep. 81, inPage 138which the Court say, that a sheriff's deed is not evidence of the fact. If the Court intended to convey the idea that arecitalin a sheriff's deed is not any evidence of the facts set forth in it, we do not concur in the opinion, but deem it an error. We hold that the recital in the deed, wasprima facieevidence of the facts set forth, it being the act of a public officer in discharging his official duties, reciting how and by what authority he had made the conveyance, nevertheless open to proof that the fact did not exist. If a sheriff's deed have no recital, or sets forth in it an insufficient execution, the purchaser may prove, by any legal evidence, that the officer, at the time of the sale, had a sufficient execution, and for this purpose the sheriff is a competent witness; or it may be proved by other testimony.Carter v. Spencer, 7 Ire. 14, andMcEntyre v. Durham, 7 Ire. 151. If, however, the Court intended to say that a sheriff's deed, not containing any recital, did not, of itself, prove that the sheriff at the time of the sale had any sufficient execution to warrant the sale, we see no error in it. Charles Shearing, against whom the execution issued, died in 1786. At that time he had no seisin in the land in question, it having been duly sold, and could transmit to his heirs no heritable blood in it. The plaintiff, therefore, who claims under him by descent, or under his sons, has no title to the premises in dispute; but the title under the facts was in the defendant.
PER CURIAM. There is no error, and judgment is affirmed.