24 S.E. 711 (N.C. 1896), Allison v. Snider

Citation:24 S.E. 711, 118 N.C. 952
Opinion Judge:FAIRCLOTH, C.J.
Party Name:ALLISON v. SNIDER et al.
Attorney:Moore & Moore, Walter E. Moore, and Shepherd & Busbee, for appellant. J. M. Moody, for appellees.
Case Date:May 12, 1896
Court:Supreme Court of North Carolina
 
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Page 711

24 S.E. 711 (N.C. 1896)

118 N.C. 952

ALLISON

v.

SNIDER et al.

Supreme Court of North Carolina

May 12, 1896

Appeal from superior court, Jackson county; Robinson, Judge.

Ejectment by T. B. Allison against U. G. Snider and Wilson Snider. There was judgment for defendants, and plaintiff appealed. Reversed.

In ejectment, where plaintiff claimed under sheriff's sale on a judgment, it was not necessary for him to allege or prove that at the time of the sale the judgment debtor's homestead was laid off, or that he was not entitled to a homestead, the sheriff's deed being prima facie proof of title; and one seeking to avoid such prima facie title on the ground that no homestead was allotted must allege and prove the fact.

Moore & Moore, Walter E. Moore, and Shepherd & Busbee, for appellant.

J. M. Moody, for appellees.

FAIRCLOTH, C.J.

The plaintiff sues for possession of land, and alleges title. The defendant admits that he is in possession, and denies that plaintiff has any title, and avers nothing more. Plaintiff and defendant claim under one Stiles; the former by a sheriff's deed under a judgment docketed January 8, 1894, the latter by a deed from Stiles dated December 13, 1893, but not delivered and recorded until April 24, 1894. The defendant contends that, as it does not appear that any homestead was laid off by the sheriff, the sale and deed to plaintiff are void. He does not aver in his answer that the homestead was not laid off, nor attempt to prove it, and it does not appear whether it was laid off or not. His honor held that the burden of showing that it was laid off, or that the judgment debtor was not entitled to it, was upon the plaintiff, and that he could not recover. In this there was error. A purchaser at a judicial or sheriff's sale under a regular judgment and execution has a prima facie title because there are circumstances when the judgment debtor is not entitled to a...

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