84 S.E. 364 (N.C. 1915), 111, Pinnell v. Burroughs

Docket Nº:111.
Citation:84 S.E. 364, 168 N.C. 315
Opinion Judge:WALKER, J. (after stating the facts as above).
Party Name:PINNELL ET AL. v. BURROUGHS ET AL.
Attorney:John H. Kerr, of Warrenton, and A. C. & J. P. Zollicoffer, of Henderson, for appellants. Thos. M. Pittman, of Henderson, for appellees.
Case Date:February 24, 1915
Court:Supreme Court of North Carolina
 
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Page 364

84 S.E. 364 (N.C. 1915)

168 N.C. 315

PINNELL ET AL.

v.

BURROUGHS ET AL.

No. 111.

Supreme Court of North Carolina

February 24, 1915

Appeal from Superior Court, Warren County; Ferguson, Judge.

Action by W. A. J. Pinnell and others against W. C. Burroughs and others. From a judgment for plaintiffs, defendants appeal. Reversed, and new trial ordered.

A purchaser at a judicial sale may, so long as the decree stands, presume that it has been regularly rendered.

Page 365

This action, to recover the possession of land, was brought by W. A. J. Pinnell, Robert L. Pinnell, and Lena Andrews, as children and heirs at law of Jackson Pinnell, against the defendants, who are the children of Lucy W. Pinnell, the widow of Jackson Pinnell, by her subsequent marriage with John H. Burroughs, who was her second husband. The land in dispute is that which was allotted to the widow of Jackson Pinnell, and plaintiffs alleged that at her death the defendants wrongfully took possession thereof. Plaintiffs further allege that Jackson Pinnell, at the time of his death, was seised of the said land, and that it descended to them, as his heirs at law. Defendants admit that Jackson Pinnell was, at one time, seised of the said land, but deny that it descended to plaintiffs, as his heirs. On the contrary, they aver that the "reversionary interest" therein, or the fee subject to the widow's dower, was sold under a judgment of the superior court of Warren county, where the land is situated, in a suit or proceeding entitled Henry B. Hunter, executor of Willis Lloyd, deceased, against Willis A. J. Pinnell (one of the plaintiffs in this action) and others, who were the other plaintiffs.

The court held that, in the state of the pleadings, the burden was upon the defendants, and they offered, as evidence, "the deed of Henry B. Hunter, executor of Willis Lloyd, deceased, to John H. Burroughs, as evidence of title in the defendants, they being the children of said John H. Burroughs, now deceased, to which the plaintiffs objected. The defendants proposed and offered to prove the loss of the records recited in the said deed, and further insisted that the deed could not be attacked collaterally." The court permitted the deed to be read as evidence. It had been proved November 25, 1870, and registered March 4, 1871, and was in the following words and figures:

"This indenture made and entered into this the 20th day of September, 1870, between Henry B. Hunter, executor of Willis Lloyd, party of the first part, and John H. Burroughs, party of the second part, all of Warren county, state of North Carolina, Witnesseth: That the said party of the first part was, by a decree of the superior court of the said county of Warren, made in a certain cause wherein the said party of the first part was plaintiff, and Willis A. J. Pinnell, an infant under twenty-one years old, and others, were defendants, ordered to sell, for the purpose of paying the debts of the said Willis Lloyd, which his personal property was insufficient to discharge, certain real estate of the said Willis Lloyd, to wit, the reversion after the life estate of Mrs. Lucy W. Burroughs, in a tract of land of 238 acres, situated in the said county of Warren, on the waters of Rich Neck, adjoining the lands of Jacob Parker, Henry Williams, and others, same being the tract which was assigned to the said Lucy W. Burroughs, then Lucy W. Pinnell; and whereas, the said party of the first part, in pursuance of the said decree, did on the 14th day of May, 1870, sell the said real estate at auction at the courthouse door in the town of Warrenton, when said party of the second part became the purchaser in the sum of one thousand dollars and paid the whole of the purchase money in cash; and whereas, upon report of the said sale to the said court, the same was in all respects confirmed, and said party of the first part was by final decree in said cause ordered to execute a deed for said real estate to the said party of the second part: Now, therefore, in consideration of the premises and of the said sum of

Page 366

one thousand dollars, the receipt of which is hereby again acknowledged, the party of the first part has given, granted, bargained, sold, and conveyed, and doth by these presents give, grant, bargain, sell, and convey, unto the said party of the second part and his heirs forever, the real estate...

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