Campbell v. Farmers' Mfg. Co.
| Decision Date | 04 March 1913 |
| Docket Number | 332. |
| Citation | 203 F. 571 |
| Parties | CAMPBELL v. FARMERS' MFG. CO. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Winston & Biggs, of Raleigh, N.C., and Charles Whedbee, of Hertford N.C., for plaintiff.
E. F Aydlett, of Elizabeth City, N.C., for defendant.
Plaintiff alleges that he is the owner of a certain tract of land lying and being situate in the county of Gates, in the Eastern district of North Carolina, which he describes by metes and bounds. He deraigns his title as follows: (1) A grant from the state to Kedar Powell, bearing date August 18, 1783. (2) A judgment rendered by the court of pleas and quarter sessions of Gates county, August term, 1789, in the case of Josiah Granberry v. Kedar Powell. (3) Deed from Seth Eason sheriff of said county, to Thomas Granberry, dated September 4, 1790. (4) Deed from Thomas Granberry to John Campbell dated June 29, 1796. (5) Descent from John Campbell to plaintiff and his grantors. He alleges that defendant claims title to said land under a deed executed by W. Lynch and wife, dated January 12, 1911, and duly recorded. This deed, plaintiff alleges, is a cloud upon his title, which he asks the court to remove, etc.
Defendant denies that plaintiff has title to the land, and thus presents an issue which must be met and disposed of at the threshold; for, of course, if plaintiff has no title, he has no standing in this court. Plaintiff relies entirely upon a paper title. He does not claim to have shown that he, or any person under whom he claims, has at any time been in the actual possession of the locus in quo. He avers that neither defendant nor its grantees has been in possession. This the defendant denies. It is conceded that the land is swampy woodland, and valuable chiefly for the timber standing upon it.
Plaintiff, for the purpose of showing title, introduces the grant to Powell, which, pro hac vice, may be conceded to cover the locus in quo. He next introduced a certified transcript of the civil docket, No. 2, of the county court of Gates county, May term, 1789, containing the following entry:
Judgment . . . . . . 107.Clerk fee . . . 0.14.9
Sheriff a/c Atto., etc. . . . 2. 2.8
'Satisfied . . . 42.11.06.'
Deed from Seth Eason, sheriff of Gates county, to Thomas Granberry, dated April 4, 1790, containing the following recital:
W.T. Cross, clerk of the superior court of Gates county, testified that, as the custodian of the records of the county court of Gates county, he has made a search in his office for the original execution against Kedar Powell; that his search was thorough, made three or four times, through all of the records, where such executions should have been filed; that he found the dockets referred to, but could find no executions or other original papers in the case. He says: 'Not so far as I have any personal knowledge. ' 'Is there any reputation of their having been removed? ' To which he answers: 'Yes.' He says that he has not been able to find any executions prior to 1800.
Plaintiff contends that, upon these records and this testimony, the recitals in the sheriff's deed constitute prima facie evidence of his authority to sell and convey the land. In the exhaustive brief of plaintiff's counsel the cases decided by the Supreme Court of North Carolina, upon this question, are carefully collected and reviewed. In Wainwright v. Bobbitt, 127 N.C. 274, 37 S.E. 336, Mr. Justice Montgomery reviews the North Carolina decisions. From an examination of those cases it appears that the court has, after much consideration, reached the following conclusion:
'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.'
This language may, in the light of the facts in the several cases cited, be rather broad and subject to some limitation. See 3 Wigmore, Ev. Sec. 1664, notes, citing Rollins v. Henry, 78 N.C. 342. In none of the cases cited and commented upon are the recitals so vague and indefinite as in the deed from Eason, sheriff, to Granberry. If this deed can be sustained by the recitals, it must be because it is an ancient deed, and the evidence of the clerk that, after a thorough search, he has been unable to find the execution issued in the case of Josiah Granberry v. Kedar Powell. His statement that there is a reputation that the records, prior to 1800, have been removed, is not sufficiently definite to sustain a finding that they have been 'destroyed by fire or otherwise' to enable plaintiff to have the benefit of the remedial provisions of sections 341, 342, Pell's Revisal. I do not think, however, that this is very material, as there is sufficient evidence that the executions issued from the county court of Gates county are lost. The clerk has made such search as entitles the plaintiff to introduce secondary evidence, especially in view of the antiquity of the deed. Everett v. Newton, 118 N.C. 919, 23 S.E. 961. I am of the opinion that the recitals in the deed constitute prima facie evidence of their truth.
The difficulty, however, consists in the fact that these recitals do not correspond with the record introduced. No execution could lawfully issue upon that judgment, authorizing the sale of the land. It will be observed that the docket entry shows that the suit of Josiah Granberry v. Kedar Powell was begun by attachment. The only step taken at the May term, 1789, was the entry of judgment by default and inquiry. This was followed at the August term, 1789, by a 'judgment for the amount in the hands of the garnishee,' with a 'stay of execution three months.' At the August term, 1790, the judgment for . . . 107 is marked satisfied '. . . 42.11.06'-- in addition to the cost. At the date of the rendition of this judgment, the attachment law, in force in North Carolina, is found in Acts 1777, c. 2 (Martins' Dig. p.
212) being section 25 of an 'Act for establishing courts of law and for regulating the proceedings therein.' This statute, brought forward in Rev. Stat. c. 6, provides that:
'Upon complaint being made on oath, etc., that any person hath removed or is removing himself or herself out of the county privately, or so absconds or conceals himself or herself that the ordinary process of law can not be served on such debtor, and if such plaintiff * * * further swears to the amount of his claim * * * it shall be lawful for...
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Aldridge v. First Nat. Bk. of Birmingham
... ... Ontario ... Land Co. v. Wilfong, 162 F. 999; Campbell v. Farmers ... Mfg. Co., 203 F. 571; Roller v. Holly, 176 U.S ... 405, 44 L.Ed. 523; ... ...