Neal v. Nelson

• Decision Date: 17 December 1895
• Citation: 23 S.E. 428,117 N.C. 393
• Parties: NEAL v. NELSON.
• Court: North Carolina Supreme Court

23 S.E. 428

117 N.C. 393

NEAL v. NELSON.

Supreme Court of North Carolina

December 17, 1895

Appeal from superior court, Stokes county; Winston, Judge.

Action of ejectment by J. W. Neal against Floyd E. Nelson. Judgment was rendered for plaintiff, and defendant appeals. Affirmed.

Where the law required the sheriff to make due return of an execution sale setting forth amount of bid and the fact of payment by the purchaser, the courts will assume that the return was true and that he collected the amount of the bid and reported the fact with the purchaser's name which appeared on the return.

Glenn & Manly, for appellant.

A. M Stack, Watson & Buxton, and Jones & Patterson, for appellee.

AVERY J.

The plaintiff introduced in support of the deed made by the sheriff to W. A. Lash, Sr., on January 1, 1878, but bearing date November 2, 1869, "an execution and sheriff's return showing the sale of the lands, and purchase by" said Lash, "on the day this deed bears date." The irresistible inference growing out of this statement is that the return identified "the lands" in controversy and showed that W. A. Lash, Sr., bought. "The presumption is that public officers do as the law and their duty require them to do." Lawson, Pres. Ev. p. 53, rule 14. The law required the sheriff to make due return, setting forth the amount of the bid and the fact of the payment of the money by the purchaser; and courts will act on the assumption that the return was true, and that it reported the receipt of the money. Hiatt v. Simpson, 13 Ired. 72; Lyle v. Siler, 103 N.C. 261, 9 S.E. 491. It has been held that where the sheriff sells under execution, nothing more appearing, it will be presumed that he complied with the law by making due advertisement. Jackson v. Shaffer, 11 Johns. 517; Lawson, Pres. Ev. p. 56. Upon the same principle, until the contrary is shown, the law infers that he collected the amount of the bid, and reported the fact with the name of the purchaser, which appeared on the return as it was his duty to do. We have been led into this discussion probably by the omission to bring the execution and return as a part of the transcript, though it was suggested on the argument that there had been some delay in making up a statement on account of the loss of court records and papers. If this return sufficiently described the land (as it is admitted it did), and evidenced (as we must assume it did) the payment of the purchase money, which was the amount offered as a bid, then it identified the subject-matter, and defined the nature, extent, and foundation, of the claim under which the agents and tenants of the purchaser entered November 2, 1869, and held undisputed possession from that date till December 14, 1877,--more than seven years. If, therefore, the deed executed by Sheriff Gentry to W. A. Lash, Sr., after his death, was ineffectual as a conveyance of the legal title, and insufficient as color of title, W. A. Lash, nevertheless, acquired title before his death, on the 27th of December, 1877, if the return of the sheriff constituted color. We are aware that in Dobson v. Murphy, 1 Dev. & B. 586 (Judge Gaston delivering the opinion of the court), it was held that such a return upon a fi. fa. was not color of title; but it was conceded that Ruffin, C.J., yielded to the majority of the court with great hesitation. In Tate v. Southard, 1 Hawks, 45 (Judge Henderson delivering the opinion of the court), it was decided that the return of a sheriff upon a fieri facias was colorable title. When the same case came before the court a second time, it appeared that an attachment had been levied on the land, the return on the writ being, "Attached one piece of land, that Richardson bought of Kennedy," and that a writ of fi. fa. afterwards issued, with no other or better description of the land, and was returned "Satisfied." After giving the definition of color of title, which was substantially repeated by Gaston, J., in Dobson v. Murphy, supra, Judge Henderson said: "The color of title set up in this case, not being in writing, for he proves the purchase by parol only, wants one of the essentials before mentioned, and is therefore insufficient. If the purchase appeared in the sheriff's return, it would be necessary to examine whether such return professed to pass the title." The first opinion in which that learned judge had passed upon the question directly seems to have remained unchallenged until 16 years afterwards, when the case of Dobson v. Murphy construed his definition as excluding any sort of a sheriff's return on an execution. In the case of Avent v. Arrington, 105 N. C., at page 379, 10 S.E. 991, it appeared that there was no seal to the instrument under which the plaintiffs claimed; and this court, citing, at page 392, 105 N. C., and page 991, 10 S. E., Barger v. Hobbs, 67 Ill. 592, which rested on the ground that such an instrument showed the extent of the possession and the nature of the claim, held that it was sufficient as color of title, though it passed only an equity in the land to the grantees. In Brown v. Brown, 106 N.C. 451, 11 S.E. 647, Justice Davis delivering the opinion of the court, and referring to the authorities cited in Avent v. Arrington, said, in discussing and giving the sanction of this court to the charge of the judge below: "The possession of Javan Davis and his assignee under the bond for title was the possession of the vendor, under whom they claim, until the purchase money was paid." Wood, in his valuable work on Limitations (volume 2, pp. 648, 649), says: "But where a contract is made for the sale of land, upon the performance of certain conditions, and the purchaser enters into possession under the contract, his possession from the time of entry is adverse to all except his vendor; and it seems now to be well settled that, after the performance by him of all the conditions of the contract, he, from that time, holds adversely to the vendor, and full performance is treated as a sale, and the party in possession may acquire a good title, as against the vendor, by the requisite period of occupancy." In a note the author cites numerous authorities from various courts sustaining the doctrine that whenever a person, occupying land under an executory agreement of another to convey, pays the purchase money, and places himself in such a position that he can demand title, his possession immediately becomes adverse to him who has contracted...