Ferguson v. Wright

• Decision Date: 19 December 1893
• Court: North Carolina Supreme Court
• Parties: FERGUSON. v. WRIGHT et al.

18 S.E. 691

113 N.C. 537)

FERGUSON.

v.WRIGHT et al.

Supreme Court of North Carolina.

Dec. 19, 1893.

Execution Sale — Allotment of Homestead — Domicile—Hearsay Evidence— Presumptions —Adverse Possession—Color of Title—Deed from Tenants in Common.

1. The sale on execution of the interest in land of one entitled to a homestead, without allotment of homestead, when he had no homestead already allotted in other land, is void.

2. On an issue as to residence, testimony that it was generally reputed in a person's family, and in the neighborhood in which he had lived, that he had become a resident of another state, is inadmissible, being hearsay.

3. The presumption is that one's domicile remains unchanged.

4. It will be presumed that the obligation to satisfy which a sale of land was made, without allotment of homestead, was incurred after the enactment of the constitutional provision for the homestead exemption.

5. All but one of the tenants in common of land which had descended to them gave a deed purporting to convey the entire interest in the land. Prior thereto, one of the grantors had received a conveyance of all the interest in the land acquired by the grantee in a sheriff's deed given pursuant to an execution sale of the remaining cotenant's interest, which was void, for the reason that homestead was not allotted him. Held, that the grantee of the tenants in common could acquire adverse title to the cotenant only by possession for the period necessary, where there is no color of title.

Appeal from superior court, Cherokee county; J. F. Graves, Judge.

Action by Mary E. A. Ferguson, as heir of Samuel G. Ferguson, against Samuel C. Wright and others, to be let into possession as a tenant in common with defendants in certain land. Judgment for plaintiff. Defendants appeal. Affirmed.

G. S. Ferguson, for appellants.

Edmund B. Norvell and C. M. Busbee, for appellee.

AVERY, J. If Samuel C. Ferguson was a resident of the state of North Carolina on the 4th of October, 1869, when his land was sold upon a justice's judgment rendered on the 11th of August, 1809, and docketed in the superior court on the 14th of October, 1869, he was entitled to a homestead; and, unless he had a homestead already allotted to him in other lands, the sale of his interest in the land in controversy, under such execution, was null and void. It was conceded that no other land had been allotted to him. He resided in North Carolina in 1866, and the summons was served on him in the case wherein judgment was rendered, and execution and sale followed, in the summer of 1869. We find positive and direct testimony tending to show these facts, and nothing more bearing upon the question of his domicile, though it was stated in general terms that there was additional testimony offered for the defendants.

The court, upon objection, properly excluded the testimony offered that Samuel C. Ferguson was generally reputed in his family, or in the neighborhood in which he lived, in 1866, to have removed to, and become a resident of the state of Georgia, where he died, in August, 1870. Evidence as to the residence of a person falls within the general rule that hearsay testimony is inadmissible, and no sufficient reason can be adduced for making it an exception, like testimony as to pedigree. The other evidence upon the same question seems to have been fairly submitted to the jury. It being conceded that Ferguson resided in Cherokee county in 1866, the presumption was that he continued to make this state his home, and the jury were left to determine whether the evidence was sufficient to rebut it, since, in the absence of such proof, the law assumed that his domicile remained unchanged. 5 Amer. & Eng. Enc. Law, p. 971; Lawson, Pres. Ev. p. 172, rule 30. The defendants offered no testimony...