Johnson v. Sink, 668.
| Decision Date | 08 June 1940 |
| Docket Number | No. 668.,668. |
| Citation | 217 N.C. 702,9 S.E.2d 371 |
| Parties | JOHNSON. v. SINK. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Davidson County; Hubert E. Olive, Special Judge.
Action in ejectment by W. A. Johnson against Robert C. Sink. From judgment of nonsuit, plaintiff appeals.
Reversed.
Civil action in ejectment.
Plaintiff seeks to recover possession of a house and lot situate on the Lexington-Thomasville Highway in Davidson County. In deraigning title, he offered in evidence commissioner's deed tending to show that he purchased the property at a judicial sale on January 12, 1939. He then offered registry of deed dated October 1, 1912, vesting title in Robert C. Sink. Further that on October 10, 1938, John A. Sink brought suit in the Superior Court of Davidson County against Robert C. Sink and wife, defendants herein, to recover $561.46 due for materials furnished and used in the construction of their house on the lot in question and to enforce a material-furnisher's lien upon the premises. This action was duly prosecuted to judgment, commissioner appointed, sale had at which the plaintiff became the last and highest bidder for $1,500, sale confirmed, deed executed by the commissioner, demand by plaintiff for possession, possession denied, and the present action was then instituted.
From judgment of nonsuit entered at the close of plaintiff's evidence, he appeals, assigning error.
McCrary & DeLapp, of Lexington, for plaintiff-appellant.
James W. Keel, Jr., of Rocky Mount, and H. R. Kyser, of Thomasville, for defendant-appellee.
It is the position of the defendant that the commissioner's deed under which plaintiff claims title to the locus in quo is void for the reason that the sale of the premises was had without first allotting to the defendant his homestead. Fulton v. Roberts, 113 N.C. 421, 18 S.E. 510; Morrison v. Watson, 101 N.C. 332, 7 S.E. 795, 1 L.R.A. 833; McCanless v. Flinchum, 98 N.C. 358, 4 S.E. 359. The first and only reference to homestead appearing on the record is in the cross-examination of the plaintiff: . This, it seems to us, is insufficient to overcome the presumption of regularity in the judicial proceeding. Corey v. Fowle, 161 N.C. 187, 76 S.E. 734; Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142. Non constat that he may not have had a homestead allotted in other lands, or that he was not entitled to...
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Henderson County v. Osteen, 3
...S.E.2d 146 (1977) (Sheriff's return); Huntley v. Potter, 255 N.C. 619, 122 S.E.2d 681 (1961) (annexation proceeding); Johnson v. Sink, 217 N.C. 702, 9 S.E.2d 371 (1940) (judicial sale); Sutton v. Jenkins, 147 N.C. 11, 60 S.E. 643 (1908) (mortgage foreclosure); Neal v. Nelson, 117 N.C. 393, ......
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McKay v. Bullard
... ... The exercise of such discretion will not be reviewed on ... appeal. Crenshaw v. Johnson, 120 N.C. 270, 26 S.E ... 810; Bank v. Carr, 130 N.C. [479] 481, 41 S.E. 876; ... State v. Cobb, ... written instrument. There is presumption of regularity in ... judicial sales." Johnson v. Sink, 217 N.C. 702, ... 9 S.E.2d 371. We cannot so hold on the facts in this record ... There is no ... ...
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Wadsworth v. Wadsworth, 521
...The excessive reports are mere irregularities. The presumption is in favor of the validity of judicial proceedings. Johnson v. Sink, 217 N.C. 702, 9 S.E.2d 371. There was only one sale and no necessity for an order of One who seeks relief by reason of irregularities in the proceedings must ......