Curlee v. Smith

• Decision Date: 31 October 1884
• Citation: 91 N.C. 172
• Court: North Carolina Supreme Court
• Parties: C. B. CURLEE v. JOHN E. SMITH.

91 N.C. 172

C. B. CURLEE

v.JOHN E. SMITH.

Supreme Court of North Carolina.

October Term, 1884.

OPINION TEXT STARTS HERE

EJECTMENT, tried at August Special term, 1884, of UNION Superior Court, before MacRae, J.

The plaintiff offered in evidence:

1. A copy of the will of Bryan Austin, dated August 11, 1842, and admitted to probate in the county of Stanly, where the testator resided at the time of his death, devising the “Mill tract” of land, situate in Union county, to his widow, Tempy Austin, during the minority of his two sons, John W. and Calvin, and as each of them came of age, then one-half of said tract to go to him.

2. A copy of the will of John W. Austin, dated March 18, 1848, devising his interest in the land to his mother for life, remainder in fee to his brother Calvin.

3. A copy of a deed executed by C. Austin, sheriff, to the plaintiff, dated April 28, 1873, reciting the sale, the execution, and the judgment, to-wit, a judgment in favor of H. M. Houston against Calvin S. Austin.

4. The plaintiff then introduced as a witness the clerk of the superior court of Union county, who testified that he had made diligent search for the judgment and execution recited in the deed, and could not find them. He found a statement of the judgment and vend. ex. on the execution docket of Union county court, April term, 1863, which was offered in evidence, and is as follows: “H. M. Houston against Calvin S. Austin--judgment $4.26, and interest from the 7th of April, 1862, and costs.”“I advertised the within land according to law, and sold the same at the court house in Monroe on the 7th of April, 1863, at which time and place C. B. Curlee became the last and highest bidder in the sum of twenty-five dollars, which is applied as follows--my fees and commissions, two dollars and twelve cents retained.” (Signed by C. Austin, sheriff.)

The clerk also testified that Austin ceased to be sheriff of said county in 1868, and one (name not stated) was sheriff in April, 1873.

5. The minute docket of the county court was then offered in evidence, which contained the entry, “H. M. Houston against Calvin S. Austin--Attachment levied on land, and order of sale.”

6. A deed from J. Marshall, administrator of Tempy Austin, to John E. Smith (the defendant) 17th of December, 1872, was then put in evidence for the purpose of showing that the defendant claims under Tempy Austin, and as an estoppel on defendant to deny that Bryan Austin was the owner of the land.

The plaintiff, a witness in his own behalf, testified that he had known the land in controversy for fifty-five years; has an acre of it in cultivation; the land was known as the “Bryan Austin Mill tract” ever since he knew it; the mill went down about thirty years ago; Tempy Austin was in possession of one-half of the tract, and Bryan was in possession before her; she was in possession up to the time John died; Bryan, Tempy and John are now dead; Calvin died eleven years before his mother, and John died a considerable time before her death; Bryan was in possession when witness moved there fifty-five years ago, and remained in possession until he died in 1842.

The witness further testified that he went to see the defendant about the land, and the defendant claimed half of it, saying he bought it at the administrator's sale, mentioned above, and that it was put up as the property of Calvin S. Austin, but not sold as his, but was sold as the property of the intestate Tempy. Defendant also said he claimed all the mill-rocks, and only half of the land, because Calvin died before his mother.

The witness on cross-examination testified concerning the boundaries of the tract, but this is not material, as no question was raised as to the identity of the land.

The following issues were submitted to the jury:

1. Is the plaintiff the owner and entitled to the possession of the land described in the complaint?

2. Does the defendant wrongfully withhold the possession thereof from the plaintiff?

3. If so, what damage has plaintiff sustained?

The defendant, without offering any testimony, asked the following instructions:

1. In this action the plaintiff must recover upon the strength of his own title and not upon the weakness of that of the defendant, that is, the plaintiff must satisfy the jury by a preponderance of testimony that he has a title to the land, before the defendant is required to prove anything; and unless the plaintiff has so satisfied the jury, they must find for the defendant.

2. There is no evidence in this case, by paper title or possession, to show that Bryan Austin ever had title to the land in dispute.

3. Nor is the evidence sufficient to estop the defendant from denying that the title was in Bryan or Calvin Austin.

4. That according to plaintiff's own testimony, he is not entitled to recover.

5. The wills of Bryan and John, not being recorded in Union county, where the land in dispute lies, are not sufficient to pass title to the land, and therefore the plaintiff cannot recover. Instructions refused.

After stating that it was admitted the defendant is in possession of the land in dispute and described in the complaint, the judge charged the jury as follows:

The plaintiff offers the wills of Bryan and John W. Austin, and the sheriff's deed conveying Calvin's interest, and a deed from the administrator of Tempy to defendant to show that he also claims under Bryan Austin; and there being no evidence to the contrary, the jury will be obliged to find that both plaintiff and defendant claim under Bryan Austin, so that it will not be necessary to trace the title further back than to Bryan Austin. Now, starting at Bryan Austin, the owner of the land, from whom both parties claim, the plaintiff offers evidence, which is not contradicted, of the will of Bryan, the will of John, the deed of the sheriff to plaintiff, dated April 28, 1873, and reciting the sale under execution in April, 1863; and if the jury believe the evidence, they will find the first and second issues in favor of the plaintiff. Exception by defendant.

There was a verdict accordingly, and the damages were assessed at twenty-two dollars and fifty cents. Motion for new trial. Motion overruled. Judgment for plaintiff, appeal by defendant.

Messrs. Payne & Vann, for plaintiff .

Messrs. Covington & Adams, for defendant .

ASHE, J.

The errors assigned by the defendant for a new trial were, the admission in evidence of the deed of the sheriff under its recitals, to prove the sale and the execution under which it was made; the entries on the execution and minute docket of the county court of Union county; the declarations of the defendant; the instructions given by His Honor to the jury, and his refusal to give those asked by the defendant.

We think the sheriff's deed was competent for the purpose for which it was introduced; and as incident thereto, so were the entries on the execution and minute docket of the county court.

It is incumbent on every one who purchases land at a sheriff's sale and claims title thereto through a deed of the sheriff, to show, if he be the plaintiff in the judgment and execution, a judgment, execution and sale; but if he be a stranger to the judgment, then he need not show a sale and execution, in the hands of the sheriff authorizing him to sell, issued from a court of competent jurisdiction. Rutherford v. Raburn, 10 Ired., 144. And the recitals in the sheriff's deed are prima facie...