Limitation of Actions—Sheriff's Deed— Estoppel—Appeal.
1. Under Code N. C. § 141, providing that possession of land "under colorable title" for seven years shall be a perpetual bar against any person having title to the same, evidence of such possession is competent under a general denial of plaintiff's title without specially pleading the statute.
2. A sheriff's deed of land which recites the judgment, execution, levy, and sale is such "colorable title" as under Code N. C. § 141, will ripen into a good title by seven years' adverse possession, though the execution cannot be found, and though it was issued, if issued at all, on a judgment which had become dormant under section 440, providing that no execution shall be issued on a judgment after three years without leave of court.
3. An exception to a referee's report that he did not find "upon the whole testimony and the law, " and, "as a conclusion of law on his finding of facts, " that plaintiff was entitled to recover, is not specific enough In pointing out any particular conclusion of law or fact to entitle it to consideration. Following Avent v. Arrington, 10 S. E. Rep. 991.
4. One who claims title under a sheriff's deed is not estopped to deny the title of another, acquired at a subsequent sale under execution issued against the same judgment debtor, when it does not appear that he was present at the sale, or caused the subsequent execution to be issued, or did anything inconsistent with his claim of title.
Civil action, tried before his honor "Walter Clark, Judge, at the August term, 1889, of Buncombe superior court, upon the report of T. H. Cobb, referee, and exceptions filed thereto. The court overruled the exceptions to the referee's report filed by the plaintiff, and confirmed the report, and plaintiff excepted to the ruling of the court confirming said report, and to each of his holdings overruling the plaintiff's exceptions. The record of the case, the report of the referee, including the evidence and exceptions of the plaintiff and the judgment of the court, constitute the case
upon appeal. The plaintiff excepted to the judgment, and appealed.
"Order. By consent all the issues arising in the pleadings now filed in this case are referred to T. H. Cobb, Esq., who shall take and state the testimony as applicable to said issues, and report the same, with his conclusions of fact and law thereon, to the next term of this court. E. T. Boykin, Judge, etc. Byconsent: Moore, for Pl't'ffs. Jolnstone Jones, Att'y for Def'd't.
"State of North Carolina, County of Buncombe. The Falls of Neuse Manufacturing Company against Samuel Brooks, Deft. Pursuant to an order of reference hereto attached, made in above-stated cause at August term, 1888, of the superior court for said county, the undersigned, T. H. Cobb, referee, after due notice to the parties, plaintiffs and defendants, service of which was accepted by the attorneys for each, which notice is herewith sent, proceeded at the place mentioned therein, and at the time, 23d of November, 1888, and at such other times to which the same was adjourned, as stated in the testimony herewith sent, proceeded to hear the evidence offered by the parties, all of which is herewith returned, both parties by their counsel of record having always been present at the taking of said testimony, and the defendant in person. And from said evidence and the admissions of counsel entered of record and herewith returned, the referee finds the following facts: (1) That the plaintiff is a corporation, duly created and organized under the laws of the state of North Carolina, (chapter 25, Acts 1871-72.) (2) That the title to the land described in the complaint is out of the state, and that both plaintiff and defendant respectively claim title to said land through and under W. L. Henry. (3) That the following judgments were rendered against said W. L. Henry at the dates and" in the courts stated, and that executions issued thereon at the dates stated, and were transferred under section 403 of the Code of Civil Procedure, as herein stated, to-wit:
"1. County court of Buncombe—October term, 1860. Charles Inman against W. L. Henry. Judgment for $153.30. with interest on $140 from Oct. 11th, 1860. Executions issued thereon as follows: Oct. 25th, 1860; Jan. 21st, 1861; April 26th, 1861; August 8th, 1861; Jan. 2d, 1862; Feb. 26th, 1863. This judgment was transferred to superior court of said county, under section 403, Code Civil Proc, on February 15th, 1869, and more than a year and a day had elapsed since the issuing of the last execution thereon. Thereafter executions were issued at the following dates: October 8th, 1869; January 15th, 1870; March 16th, 1871; July 11th, 1876.
"2. Buncombe county court—September term, 1867. William Johnston against W. L. Henry. Judgment for $197.58, with interest on $186.34 from September 10th, 1867. Fi. fa's issued as follows: October 8th, 1867; November21st, 1867; March 12th, 1868, Transferred under section 403, Code Civil Proc, January 25th, 1869. Ven. Ex., issued as follows: March 18th, 1869; October 8th, 1869; January 12th, 1870; June 9th, 1871.
" 8. Buncombe superior court—November term, 1867. George Brooks against W. L. Henry. Judgment for $110.83, with interest on $65.00 from November 11th, 1867. Fi. fa's issued as follows: February 19th, 1868; July 13th, 1868. Transferred under section 403, Code Civil Proc, February 18th, 1809. Ven. Ex's issued as follows: March 4th, 1869; April 26th, 1869; February, 1S70; March 14th, 1871.
"4. Buncombe superior court—November term, 1867. E. Sluder against W. L. Henry. Judgment for $306.82, with interest on $207.36 from November 11th, 1867. Fi. fa's issued as follows: February 27th, 1868. Transferred under section 403, Code Civil Proc, February 17th, 1869. Execution issued as follows: March 9th, 1869; March 16th, 1871. [The referree then gives the dates and amounts of six other judgments rendered in favor of different persons against W. L. Henry, and the times of issuing executions on each, which it is considered immaterial to give.]
"11. Buncombe county superior court— Fall term, 1869. John Yancey & Son against W. L. Henry. Judgment $612.39, with interest on $411 from November 29th, 1809. Executions issued as follows: February 7th, 1870; September 2d, 1870; January 9th, 1871. Each of the above judgments were also for costs in addition to the amounts above stated. The foregoing descriptions are from Exhibit D.
" (4) That the executions upon the above-described judgments, which were offered in evidence in this case, are Exhibits 1 to 11, inclusive; that they are in regular form, duly signed, and that they were duly levied upon the land described in the complaint in this case as the property of said W. L.Henry, and also other property, and that said land was duly advertised and sold under said executions and levies, by. J. M. Young, sheriff of said county, on July 1, 1871, according to law, and purchased by G. M. Roberts, W. W. Rollins, Pinkney Rollins, and J. L.Henry; and the said sheriff thereupon, on said day, executed and delivered to said purchasers a deed in due form, reciting said judgments and executions and sale, conveying to them the said land described in the complaint in this cause, in fee, with other land therein described, (Exhibit 121,) which deed was duly probated and duly registered in the office of the register of deeds for said county of Buncombe. There is no evidence that either of said purchasers had any notice of the irregularity in the first judgment mentioned in paragraph 3.
" (5) That the records introduced as Exhibit 13, being the case of Samuel B. Gudger, executor, and others, against Robert M. Henry and others, to establish the will of Robert Henry, dec'd, and the records introduced as Exhibit 14, being the case of Samuel B. Gudger, executor of Robert Henry, against W. L. Henry, in Haywood county, and the deed Exhibit 15, from J. M. Young, sheriff, to G.M. Roberts and others, and the deed Exhibit 16, from Robert Henry to W. L. Henry, do not refer in any manner to the land in controversy in this action, but are in reference to other lands, and they have no bearing in this case.
" (6) That on the 11th day of February, 1874, J. L. Henry and wife, M. A. Henry, executed and delivered to Pinkney Rollins and L. M. Welch a deed conveying to them in fee all the interest, right, and title of the said grantors to the land described in the complaint in this case, and other land therein described, excepting a part thereof in the following language, to-wit: ' Excepting that portion recently conveyed to Cornelia C. Henry, wife of W. L. Henry.' This deed was executed and probated as to J. L. Henry on August 26, 1879, and duly registered in the office of the register of deeds for said county of Buncombe, Book 39, page 465. There is no probate of said deed, or privy examination as to said M. A. Henry. There is no evidence before the referee as to what land is covered by the above exception, and there is no evidence as to whether Mrs. M. A. Henry is living or dead.
"(7) That on the 8th day of August, 1876, W. "W. Rollins and wife, Eliza J. Rollins, Pinkney Rollins and wife, Hester J. Rollins, and Lucius M. Welch, by deed duly executed and delivered, conveyed to the Falls of Neuse Manufacturing Co., the plaintiffs in this case, the land described in the complaint, with other land, conveying the interests purchased from J. M. Young, sheriff, at the sale of said lands hereinbefore described in paragraph 4, which deed was duly probated and registered.
" (8) That on the 14th September, 1874, L. M.Welch, W.W. Rollins, and Pinkney Rollins, as plaintiffs, filed a petition in the superior court of Graham county, against R. M. Henry and W. L. Henry as defendants, seeking to set aside a decree of the superior court of said county, adjudging title and possession to...
