McLane v. Moore
| Decision Date | 31 August 1859 |
| Citation | 6 Jones 520,51 N.C. 520 |
| Court | North Carolina Supreme Court |
| Parties | Doe on the demise of ELIZABETH McLANE v. RICHARD MOORE. |
Where an estate was limited to one for life, remainder to a feme, who took husband during the existence of the life estate, it was Held that the latter was not barred by the lapse, during the continuance of such coverture, of more than seven years of adverse possession, she having brought suit within the time allowed after discoverture.
Where a constable levied an attachment on real estate, and the same after judgment of condemnation by a justice having jurisdiction of the amount, was returned to Court, where an order of sale was made, it was Held that an irregularity as to the form of the process in respect to the day of its return was cured, and that advertisement was to be presumed, upon the principle omnia præsumuntur, &c.
ACTION of EJECTMENT, tried before MANLY, J., at the Spring Term, 1859, of Polk Superior Court.
The plaintiff deduced title:
1. Through a grant from Willis Scroggins:
2. Legal proceedings by attachment against Scroggins, and sale of the land with a sheriff's deed to John Hughes.
3. The will of John Hughes, devising the premises to his wife for life, remainder to the lessor of the plaintiff.
The proceedings in attachment were as follows, that is to say:
1st. An affidavit by John Hughes, dated 12th of September, 1799, alleging that Willis Scroggins is indebted to him in six pounds three shillings and sixpence, and that he has good reason to believe that the said Scroggins hath absconded.--Signed by the affiant, and witnessed by “Samuel Young, J. P.”
2nd. A bond with sureties payable to Willis Scroggins in twelve pounds seven shillings, conditioned “that John Hughes prosecute his suit agreeable to law, in case of an attachment against said Scroggins,” dated 12th September, 1799.
3rd. An attachment in the following words:
“State of North Carolina, Rutherford county.
Whereas, John Hughes personally appeared before me, Samuel Young, Esq., one of the justices of said county, and made oath that Willis Scroggins hath removed, or so absconded that the ordinary process of law cannot be served on him, and that he is justly indebted to him in six pounds three shillings and sixpence, and detaineth payment, this is therefore, to require you to attach so much of the goods and chattels, lands and tenements of the said Willis Scroggins, pleviable by security, sufficient to satisfy the said debt and cost, and make return how you have executed this writ. Given under my hand, this 12th of September, 1799.
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¦(Signed,)¦SAMUEL YOUNG, [ Seal. ]¦
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On which was endorsed as follows:
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¦“John Hughes, ¦)¦Attachment. ¦
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¦vs. ¦)¦ ¦
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¦Willis Scroggins.¦)¦12th of September.¦
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Levied on one hundred acres of land on Green River, joining James Redings above, and Miller below--no personal property to be found.
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¦Cost 5s.¦JAMES SCOTT, D. Sh'ff.”¦
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The plaintiff proves his account to six pounds 3-6, and 5s. cost. Judgment before me, this 1st day of October, 1799.
SAMUEL YOUNG, J. P.”
4th. The following writ:
State of North Carolina.
To the Sheriff of Rutherford county--greeting:
Whereas, James Scott, as constable, returned into court a judgment at the instance of John Hughes, against Willis Scroggins, for the sum of six pounds three shillings and sixpence and cost, taken before Samuel Young, Esq., in the following manner, viz: 12th September, 1799. Levied upon 100 acres of land on Green River, joining James Redings above and Miller below; no personal property to be found, and the same being made returnable to court for orders of sale, ordered, therefore, that you, the said sheriff, do sell the said lands, or so much thereof, as shall be of sufficient (value) to satisfy the said debt with cost, and make due return thereof, to our next court, how you have executed this order.
Witness, R. T. Lewis, clerk of our said court, at office, the second monday in October, 1799.
R. T. LEWIS, cl'k
On which last paper is endorsed as follows:
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¦“John Hughes, ¦)¦Order of sale to January, 1800.¦
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¦vs. ¦)¦ ¦
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¦Willis Scroggins.¦)¦ ¦
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10th of January, 1800, sold at public auction, the land within, agreeable to the order, to John Hughes, the plaintiff, for three pounds. No money paid.
JAMES SCOTT, D. Sh'ff.
The foregoing were original papers, filed in the office of the clerk of the Superior Court, of Polk county.
The following is duly certified from the minutes of the county court of Rutherford:
State of North Carolina.
County Court of Pleas and Quarter Sessions begun and held for the county of Rutherford, at the court-house in Rutherfordton, on the second monday in October, being the 14th of said month, in the year of our Lord, 1799.
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¦Present--¦Stephen Willis, ¦)¦ ¦
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Wright v. Southern Ry. Co.
... ... and the parties. Rood on Garnishment, § 214; Grier v ... Rhyne, 67 N.C. 338; McLane v. Moore, 51 N.C ... 520. No question is made in this case as to the jurisdiction ... of either of the courts which rendered the two judgments, ... ...
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Wright v. Southern Ry
...that the court had jurisdiction of the subject-matter and the parties. Rood on Garnishment, § 214; Grier v. Rhyne, 67 N. C. 338; McLane v. Moore, 51 N. C. 520. No question is made in this case as to the jurisdiction of either of the courts which rendered the two judgments, and there is no i......
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