Edwards v. Tipton

• Decision Date: 30 June 1877
• Citation: Edwards v. Tipton, 77 N.C. 222 (N.C. 1877)
• Parties: O. B. D. EDWARDS and wlfe v. JOHN TIPTON and others.
• Court: North Carolina Supreme Court

77 N.C. 222

O. B. D. EDWARDS and wlfe

v.JOHN TIPTON and others.

Supreme Court of North Carolina.

June Term, 1877.

CIVIL ACTION for the Possession of Land, tried at Spring Term, 1877, of MITCHELL Superior Court, before Furches, J.

The plaintiffs, for the purpose of establishing their title, introduced a deed from one Brown to William Edwards, dated the 15th of August, 1833, and a deed from said Edwards to Lavina Edwards, the feme plaintiff, dated the 24th of January, 1861, and then offered other testimony tending to show adverse possession for more than twenty-one years.

The defendants claimed as heirs at law of one Hughes, who had bought the land in controversy of one Flemming, now deceased. Hughes took a bond for title and paid the purchase money. The bond was lost, and no deed was ever made by Flemming before his death, or by his heirs at law or personal representative. Hughes entered in 1856, and he and those claiming under him have continued in possession ever since. They then offered in evidence a deed from the Coroner of the County to the heirs of said Flemming. This was objected to by the plaintiffs, because it was executed by a Coroner who was the successor of the Coroner who made the sale, and because the defendants had not produced any execution authorizing the sale. The defendants then showed that the Coroner sold the land of said William Edwards to satisfy an execution in favor of the Sheriff of the County, and that Flemming became the purchaser. The records and papers were destroyed during the war and could not be found. His Honor overruled the objection and admitted the deed in evidence. The defendants then offered evidence tending to show, that said deed covered the land in dispute, and their continued possession thereof since the purchase from Flemming.

The plaintiffs in reply offered in evidence (the defendants objecting) a copy of the levy of the Coroner under which the sale was made to Fleming in 1841, and showed that William Edwards at that time lived on the “Bowman tract” of land, and had not at any time before that lived on the locus in quo. They insisted that the levy was made on the land “on which William Edwards now lives adjoining the lands of Hughes and others,” and did not cover the land in dispute, because it was not the land on which said Edwards then lived. They further insisted that if the Coroner's deed to the Fleming heirs did not cover the locus in quo, and the levy did not, the deed would be void as to that part not covered by the levy as a matter of law, and asked the Court so to charge the jury. His Honor refused to give the instructions asked. Verdict for defendants. Judgment. Appeal by plaintiffs.

Messrs. Busbee & Busbee and W. H. Malone, for plaintiffs .

Mr. A. C. Avery, for defendants .

RODMAN, J.

The Revised Code ch. 37, § 30, (Bat. Rev. ch. 35, § 27,) enacts, that when any Sheriff or Coroner sells land and goes out of office, or dies, &c., before making a conveyance therefor, his successor in office shall execute the conveyance, and such conveyances shall be as valid as if made by the officer who made the sale.

Of course the successor can make a deed for only what his predecessor sold, and not for any thing he did not sell. He can never have an official, and seldom a personal knowledge of what it was that his predecessor did sell, and he must necessarily obtain his information on that point from the statements of others. But his opinion derived from such statements cannot be conclusive either upon parties or strangers to the execution. If a Sheriff should refuse to execute a deed tendered to him by one who alleges that he purchased a certain piece of land at a sale made by a former Sheriff, the purchaser may apply to the Court under whose process the sale took place, and in a proper case, obtain a mandamus or rule on the Sheriff to execute the deed. In this case the Court would necessarily receive evidence to sustain the facts alleged. Isler v. Andrews, 66 N. C. 552.

If the Sheriff should voluntarily execute the deed tendered, it must be in like manner competent for a Court on the trial of an action putting the title to the land conveyed in the deed in issue, to hear evidence as to what was actually sold.

In Harriss v. Irwin, 7 Ire. 432, evidence was admitted to show that the alleged purchaser had not paid the purchase money to the Sheriff who sold, and the deed of the succeeding Sheriff was held void.

In Jackson v. Jackson, 13 Ire. 159, evidence was received...