Fisher v. Jackson, 92.

• Decision Date: 11 October 1939
• Docket Number: No. 92.,92.
• Citation: 216 N.C. 302,4 S.E.2d 847
• Court: North Carolina Supreme Court
• Parties: FISHER. v. JACKSON et al.

4 S.E.2d 847

216 N.C. 302

FISHER.

v.JACKSON et al.

No. 92.

Supreme Court of North Carolina.

Oct. 11, 1939.

Appeal from Superior Court, Buncombe County; J. W. Pless, Jr., Judge.

Action in ejectment by Laura E. Fisher against Mary Jackson and others. From an adverse judgment, the defendants appeal.

Reversed.

I. C. Crawford, of Bryson, for appellants.

Zev F. Cur. is, of Asheville, for appellee.

SCHENCK, Justice.

This is an action in ejectment commenced in the General County Court of Buncombe County, and heard upon defendants' appeal to the Superior Court upon exceptive assignments of error.

The plaintiff alleged and offered evidence tending to prove that she was the owner and entitled to the possession of the land described in the complaint, and that the defendants refused to surrender such pos session which they wrongfully held. The defendants denied that the plaintiff was the owner of the lands described in the complaint, and by way of further defense alleged that a certain deed of trust, through the foreclosure of which the plaintiff claims title, contained the land described in the complaint as a result of fraud and mistake, and that said deed of trust had been fraudulently and wrongfully foreclosed.

The jury returned the following verdict:

"1. Did the person who acted for the Central Bank and Trust Company, Trustee, as agent in selling the property at said foreclosure sale, also act as agent for plaintiff Laura E. Fisher in purchasing said property at the foreclosure sale? Answer: No.

"2. Is the plaintiff the owner of the premises described in the complaint and entitled to the possession thereof? Answer: Yes."

From judgment of the General County Court predicated on the verdict the defendants appealed to the Superior Court where all exceptive assignments of error were overruled and the judgment affirmed. From the judgment of the Superior Court the defendants appealed to the Supreme Court.

After charging the jury that if they answered the first issue in the affirmative they need not answer the second issue, the trial court properly charged that the burden of proof on the second issue was upon the plaintiff, but followed this by charging: "Defendants contend you ought to answer this (second) issue No, even if you should answer the first issue No, defendants contending there was a mistake made and they had no proper notice of the sale, that they were not present at the sale, did not have an opportunity to bid on the property, and they had never considered...