Millsaps v. McCormick
| Decision Date | 30 June 1874 |
| Citation | 71 N.C. 531 |
| Court | North Carolina Supreme Court |
| Parties | R. J. MILLSAPS v. REBECCA MCCORMICK and another. |
An obvious and palpable mistake, which a Court would correct of course on motion, needs no correction and may be disregarded.
The burden of proving an affirmative defence is on the party who makes it. Therefore, it is necessary for the heirs to prove, that their possession of certain land, outside of the dower, was adverse to the plaintiff who claimed under a Sheriff's deed, when they allege such a fact.
CIVIL ACTION for the recovery of real property, tried before Clarke, J., at the Special (January) Term, 1874, of ROBESON Superior Court.
All the facts relating to the points decided are fully stated in the opinion of the Court.
Leitch and N. A. McLean, for defendant .
N. McLean and McKay, for the plaintiffs .
The plaintiff claims the land in controversy under a sale by the sheriff of Robeson county, under an execution from the County Court of that county, at the instance of McLean against John McCormick, the father of the defendants. The sale was 22d of August, 1842. Jacob Blount became the purchaser and the sheriff made a deed to him, the sufficiency of which is one of the questions made on this appeal. The deed is dated 20th September, 1842. The particular matter in which it is alleged to be insufficient will be stated hereafter.
It does not appear when or how the plaintiff obtained the title of Blount, but it seems not to have been questioned on the trial that he had obtained it. As the case discloses no question on this point, we assume that none was made below.
John McCormick, the ancestor of defendants, died after the teste and before the return day of the execution, and the sale was before the return day. It does not appear, therefore, to have been irregular.
Among the exhibits attached to the record is a return by the sheriff, that on the 22d of November, 1842, he assigned dower in the lands of the said John McCormick to his widow Milly, who, it was proved, died shortly before the commencement of this action, which was on 4th of February, 1873.
It does not appear that this report was ever confirmed by the County Court. But as no question was made on that point, we assume that the assignment of dower was regular.
The plaintiff proved that the widow and the defendants had lived upon the land ever since the death of John McCormick in 1842.
The defendants, by their answer, alleged that they had held and occupied the lands described in the complaint since 1842, adversely to the plaintiff, and that he was thereby barred of a recovery.
It is not stated anywhere in the record, and it seems not to have been in evidence upon the trial below, whether the defendants occupied the part of the land assigned to the widow for dower only, or that and the residue also.
The defendants requested the Judge to charge the jury:
1. That the deed from the sheriff was insufficient to convey the estate of John McCormick to Blount.
2. “And that having failed to prove that defendants were occupying the premises within the lines of the dower land, that this possession was adverse to that of the plaintiff, and being barred by lapse of time, the plaintiff could not recover.”
The Judge declined so to charge. The instructions which the Judge did give the jury are not set forth, and as the appellant makes out the case, it must be presumed that there could be no exception taken to the instructions given, except that they did not contain those asked for and declined.
The jury found a verdict for plaintiff for the whole of the land included in the sheriff's deed.
The deed is in the usual form except as presently stated. It recites the judgment, execution, sale and purchase by Blount, and the payment of the price by him, and then conveys to him and his heirs “all the right, title, claim and demand of him the said John A. Rowland, sheriff, in the lands aforesaid, lying and being,” &c., describing the lands.
The argument for the defendant is that the estate of their ancestor, John McCormick, was not conveyed.
The meaning of a deed is to be gathered...
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Wells v. Clayton, 744
...Williams v. Philadelphia Life Ins. Co., 212 N.C. 516, 193 S.E. 728; Lummus Cotton Gin Co. v. Wise, 200 N.C. 409, 157 S.E. 20; Millsaps v. McCormick, 71 N.C. 531. An answer may be in essence a plea in confession and avoidance. Such plea, as its name implies, admits the cause of action allege......
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Bowser v. Wescott
... ... of 1891. We think there is a marked distinction between this ... case and the cases cited in behalf of the enterer ... McCormick v. Monroe, 46 N.C. 13, and Board of ... Education v. Makely, 139 N.C. 31, 51 S.E. 784. The ... former was decided 30 years before the act we are ... Some of the more important ones may be ... thus enumerated: (1) He who alleges an affirmative must take ... the burden of proving it. Millsaps v. McCormick, 71 ... N.C. 531; Edmonston v. Shelton, 49 N.C. 451; ... Hinson v. King, 50 N.C. 393; Covington v ... Leak, 65 N.C. 594. (2) ... ...
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Bowser v. Wescott.*
...Some of the more important ones may be thus enumerated: (1) He who alleges an affirmative must take the burden of proving it. Millsaps v. McCormick, 71 N. C. 531; Edmonston v. Shelton, 49 N. C. 451; Hinson t. King, 50 N. C. 393; Coving ton v. Leak, 65 N. C. 594. (2) He who asserts the exist......
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