Jones v. Percy

• Decision Date: 25 February 1953
• Docket Number: No. 22,22
• Citation: 237 N.C. 239,74 S.E.2d 700
• Parties: JONES, v. PERCY et al.
• Court: North Carolina Supreme Court

Page 700

74 S.E.2d 700

237 N.C. 239

JONES, v. PERCY et al.

No. 22.

Supreme Court of North Carolina.

Feb. 25, 1953.

Carter & Ross, Washington, for plaintiff appellee.

J. D. Paul and John A. Wilkinson, Washington, for defendants appellants.

BARNHILL, Justice.

The defendants here properly gave notice of their intention to assert that the foreclosure deed relied on by plaintiff was in- sufficient to pass title to him by alleging that 'such sale was invalid and not made in accordance with the directions of the law * * *. ' There was no motion to require defendants to particularize or make their general allegation more specific. In the trial defendants confined their attack on this deed to evidence of want of proper advertisement. An issue directed to this defense was submitted to the jury without exception. Hence plaintiff is not now in a position to contend that the primary questions defendants seek to present for decision on this appeal are not properly before the court for consideration.

In its charge on the first issue the court instructed the jury as follows:

'The Court instructs you in relation to this particular issue, the burden of which is upon the defendant, to convince you that the Washington Progress was or is not a newspaper of general circulation as required and contemplated by the Statutes of North Carolina, the Court instructs you that if you believe the testimony of Mr. Ashley Futrell that the newspaper is entered as second class matter with the U. S. Post Office Department, that it is a newspaper published once each week, that it is listed as an approved newspaper by the North Carolina Press Association, that it is distributed generally in beaufor County, that it carries general news, advertisements, editorials, although these editorials were lifted from the Washington Daily News or some other newspaper, then the Court instructs you it would be your duty to answer that issue Yes; if you are not satisfied, not beyond a reasonable doubt, not by the weight of the evidence, or not by the preponderance of the evidence, but if you are not satisfied as to these facts, then you will answer that issue No.'

Upon which party, under this instruction, did the court place the burden of proof on the first issue? In the beginning it stated that the burden rested upon the defendants to offer evidence which would entitle them to a negative answer thereto. Yet, at the end the jury was instructed that if it was not satisfied as to the existence of certain detailed facts tending to show that the Washington Progress was a newspaper within the contemplation of the statute, it should answer the issue 'no.' This would seem to place the burden of proof on the plaintiff.

If the charge is to be construed to place the burden of proof on the defendants, then they have no cause to complain on that ground.

In an ejectment action in which the parties claim through a common source, the burden on the issue of title rests upon the plaintiff or other party asserting title and right of possession to connect his title to the common source of title by an unbroken chain of conveyances and show that [1) the land in controversy is embraced within the bounds of the deeds or other instruments upon which he relies, and (2) the title thus acquired is superior to that claimed by his adversary. Thereupon the defendant, or party in possession, may attack any link in the chain of title relied on by the party seeking to oust him without prior supporting allegation. Ownbey v. Parkway Properties, Inc., 221 N.C. 27, 18 S.E.2d 710, and cases cited; Toler v. French, 213 N.C. 360, 196 S.E.2d 209; Powell v. Turpin, 224 N.C. 67, 29 S.E.2d 26.

Under this rule when plaintiff offered the foreclosure deed upon which he relies, the defendants were privileged to attack it as invalid in law without first having pleaded the failure of the trustee to advertise the foreclosure sale as required by law. Ownbey v. Parkway Properties, supra; Powell v. Turpin, supra.

But the attack is in the nature of an affirmative defense, and the burden rests upon him who makes it to carry the burden of proof. This rule, which this Court, with one exception, has consistently followed, is stated by Brogden, J., speaking for the Court, in Biggs v. Oxendine, 207 N.C. 601, 178 S.E. 216, 217, as follows:

'The law presumes regularity in the execution of the power of sale in a deed of trust duly executed and regular upon face; and, if there is any failure to advertise properly, the burden is on the attacking party to show it. ' Cawfield v. Owens, 129 N.C. 286, 40 S.E. 62; Norwood v. Lassiter, 132 N.C. 52, 43 S.E. 509; Troxler v. Grant, 173 N.C. 422, 92 S.E. 152; Jenkins v. Griffin, 175 N.C. 184, 95 S.E. 166; Brewington v. Hargrove, 178 N.C. 143, 100 S.E. 308; Berry v. Boomer, 180 N.C. 67, 103 S.E. 914; Jessup v. Nixon, 186 N.C. 100, 118 S.E. 908; Douglas v. Rhodes, 188 N.C. 580, 125 S.E. 261; Brown v. Sheets, 197 N.C. 268, 148 S.E. 233, 63 A.L.R. 1357; Arey Brick & Lumber Co. v. Waggoner, 198 N.C. 221, 151 S.E. 193; Phipps v. Wyatt, 199 N.C. 727, 155 S.E. 721; Higgins v. Higgins, 212 N.C. 219, 193 S.E. 159; Gibbs v. Higgins, 215 N.C. 201, 1 S.E.2d 554; Elkes v. Interstate Trustee Corp., 209 N.C., 832, 184 S.E. 826; Dillingham v. Gardner, 219 N.C. 227, 13 S.E.2d 478.

But defendants cite and rely on Jefferson Standard Life Insurance Co. v. Boogher, 224 N.C. 563, 31 S.E.2d 771, 772, which we must concede is in conflict with decisions above cited and others of like import. It is the one case in our reports in which we have held that in an ejectment action in which the defendant attacks a foreclosure deed relied on by plaintiff on the ground that the foreclosure sale was not properly advertised, the burden of showing compliance with the requirements of the statute rests upon the plaintiff. In...