Morrison v. Watson

• Decision Date: 31 October 1886
• Citation: 95 N.C. 479
• Court: North Carolina Supreme Court
• Parties: D. M. MORRISON v. JOHN G. WATSON.

95 N.C. 479

D. M. MORRISON

v.JOHN G. WATSON.

Supreme Court of North Carolina.

October Term, 1886.

This was a CIVIL ACTION, tried before Boykin, Judge, at October Term, 1886, of RICHMOND Superior Court.

The plaintiff alleged that he was the owner and entitled to the possession of four tracts of land described in his complaint, which the defendant wrongfully withholds, and to these averments the defendant opposed a simple denial. Three issues were submitted to the jury, to which another was added during the trial, and these, with the responses to each, were as follows:

1. Is the plaintiff the owner of and entitled to the immediate possession of the land described in the complaint? Answer: Yes.

2. Did the defendant, at the time of bringing this suit, unlawfully and wrongfully withhold the possession thereof? Answer: Yes.

3. What damage is the plaintiff entitled to recover? Answer: One hundred and sixty-two dollars.

4. What was the value of the land sold by the sheriff under execution on June 9th, 1879? Answer: Eleven hundred dollars.

Thereupon, judgment was rendered that the plaintiff take nothing by his action, and that the defendant go without day and recover his costs. From this judgment the plaintiff appealed.

Messrs. J. D. Shaw and Frank McNeill, for the plaintiff .

Mr. Platt D. Walker, for the defendant .

SMITH, C. J., (after stating the facts).

Such was the condition of the record when the transcript was first filed in this Court. On plaintiff's application a certiorari was awarded looking to a perfection of the record in the Court below, and a transmission of it when corrected, in order to an understanding of the matter intended to be reviewed. In answer to the writ, we have the amended judgment with the finding by the Judge who tried the cause, of the facts that occurred while it was in progress, not material to be set out in detail, which judgment, reciting the issues and jury findings, proceeds thus:

“And it being admitted by the plaintiff that the execution under which the land was sold on the 9th June, 1879, was issued upon a judgment recovered on a debt contracted prior to 1868, and that the amount of said execution debt, principal, interest and costs was about eighty dollars, and that at the time of such sale the homestead of the defendant had not been assigned to him in the said land, and that the defendant was then in the possession thereof, and it appearing from the verdict and the said admitted fact that the land was of sufficient value to constitute defendant a homestead as well as satisfy the said execution.

The defendant now moving for judgment upon the fourth issue notwithstanding the verdict on the other issues:

It is ordered and adjudged by the Court, that the plaintiff take nothing by this action and that the defendant go hence without day, and recover his costs”.

The...