Hines v. Moye

• Decision Date: 10 October 1899
• Court: North Carolina Supreme Court
• Parties: HINES. v. MOYE et al.

34 S.E. 103

125 N.C. 8

HINES.

v.MOYE et al.

Supreme Court of North Carolina.

Oct. 10, 1899.

ACTION—FORM OF ACTION—ADVERSE POSSESSION—EJECTMENT—NOTICE OF JUDGMENT— COLOR OF TITLE—JUDGMENT SALE.

1. Where a complaint alleges title in the plaintiff, and admits actual and adverse possession in the defendant, and the prayer for relief is that it may be declared that the title of plaintiff is valid, and that he recover possession, the action is properly treated as one in ejectment.

2. Where the purchaser of land at a judgment sale does not pay the purchase price, and the sale is set aside, and a new order of sale made, which does not hold such purchaser liable for any part of the costs of the proceeding, he stands as an indifferent person, and cannot be charged with notice of the judgment because of his connection with the first sale.

3. Title to land under purchase at a judgment sale is not sufficient to defeat possession under a properly recorded conveyance made after judgment was rendered, where it appears that the decree of sale was not recorded until after the judgment lien had expired, and that the party claiming under such sale did not take any steps towards securing possession for more than six years.

Appeal from superior court, Craven county; Bryan, Judge.

Action by James W. Hines against Louis Moye and others. There was a judgment for defendants, and plaintiff appeals. Affirmed.

Jacob Battle and D. L. Ward, for appellant.

Simmons, Pou & Ward, for appellees.

MONTGOMERY, J. It was suggested here by the plaintiff's counsel that his honor not only rendered an erroneous judgment upon the facts agreed, but that he passed directly upon the title of the plaintiff to the land which is the subject of the action. The objection was that the suit was commenced, under chapter 6 of the Laws of 1893, to determine the adverse claim of the defendant to the land described in the complaint. The action was treated by the court as one in ejectment and we think properly so. The complaint alleged title in the plaintiff, and admitted actual and adverse possession in the defendant Moye; and the prayer for relief was that it might be declared that the title of the plaintiff was good and valid, that he recover possession, and that an injunction be granted restraining the defendant from cutting timber on the land. The land, situated in Craven county, was conveyed by John I. Killebrew and wife to the defendant Moye by deed dated August 10, 1888, and properly registered February 4, 1889. On the 22d of March, 1888, a judgment in favor of Thomas H. Battle, to the use of E. F. Arrington, against John I. Killebrew, had been docketed in the superior court of that county, the land at that time being the property of Killebrew. At the fall term, 1890, of Nash superior court, a judgment was entered in a civil suit commenced by the creditors of Killebrew,. including the plaintiff, who had become the owner of the Battle judgment, for the purpose of ascertaining the amounts and priorities of the various liens upon the real estate of Killebrew, in which judgment a commissioner was appointed, who was directed to sell the tract of land in controversy to satisfy the Battle judgment. The defendant Moye was not a party to that action. The land was sold by the commissioner, and bid off by the...