Peebles v. Pate

• Decision Date: 28 February 1884
• Citation: 90 N.C. 348
• Parties: R. B. PEEBLES v. JOHN W. PATE.
• Court: North Carolina Supreme Court

90 N.C. 348

R. B. PEEBLES

v.JOHN W. PATE.

Supreme Court of North Carolina.

February Term, 1884.

EJECTMENT tried at Spring Term, 1883, of NORTHAMPTON Superior Court, before Philips, J.

On the trial the plaintiff, in support of his title, introduced a judgment rendered and docketed in said county on the 10th of February, 1869, in favor of Mary E. Phillips as guardian of the children of John D. Phillips and against John W. Pate and others for one hundred and fifteen dollars, with compound interest on the same from January 1st, 1881, till paid, and for costs. The said judgment was upon a bond executed in 1860; also an execution on said judgment issued the 8th day of June, 1874, returnable to the fall term of said court; also a sheriff's deed dated November 7th, 1874, reciting a sale of the land ( the locus in quo) under said execution as the property of John W. Pate, and purporting to convey the same to the plaintiff R. B. Peebles. He also proved that the defendant, John W. Pate, was in possession of the locus in quo at the time of and ever since the commencement of this action. The plaintiff here rested his case.

The defendant John W. Pate, by way of impeaching the validity of the execution and sale to the plaintiff, and to show that the plaintiff acquired no title under the execution of the 8th of June, 1873, offered in evidence an execution on the same judgment issued June the 10th, 1873, and the return of the sheriff thereon; also another execution issued June 30th, 1873, upon the same judgment upon which there was the following return by the sheriff: “Not satisfied. August 9th, 1873. This day levied this execution upon a tract of land containing twenty-four acres, more or less, and upon another tract of land containing two hundred and fifty-nine acres, more or less, the property of John W. Pate, to satisfy this execution”; also one other execution which was issued on the same judgment, dated October 17th, 1873, which came to the hands of the sheriff on the 12th of November, 1873, and with the same the defendant introduced the following entries, which were endorsed on the said execution, to-wit: A copy of the levy of August 9th, 1873, as set forth as originally endorsed on the execution of date June 11, 1873; also on said execution this return: “December 6th, 1873. Received two hundred and two dollars from the sale of the above named tracts of lands purchased by Wm. T. Stephenson, of which thirty-three dollars and twenty-two cents is costs and commissions, and one hundred and sixty-eight dollars and seventy-eight cents on debt and interest in part of this execution.” (Signed by the sheriff). Also on said execution is the following entry: “December 22d, 1873. Received of W. Newsom, sheriff, the sum of one hundred and sixty-eight 78/100 dollars in part of the within execution.” (Signed, R. B. Peebles, attorney for J. J. Long).

The other entries were also endorsed on the execution of June 8th, 1874, under which the plaintiff claims title, in the handwriting of the clerk of the court, and also the following endorsment of a return by the sheriff:

“After due and lawful advertisement at the court-house in Northampton county, and four other public places in said county, I did, on the 7th day of November, 1874, expose to sale and sell at public auction to the highest bidder for cash, the two tracts of land mentioned in the levy, where and when R. B. Peebles became the last and highest bidder for the same in the sum of five dollars each, complied with the terms of sale and was declared the purchaser.”

The defendant introduced J. D. Boone as a witness, who testified that he was at the time of the above-stated proceedings a deputy sheriff; that the handwriting of the returns and receipts was as recited herein, and that the land sold under execution of date 17th of October, 1873, under which Stephenson purchased, and that of date 10th June, 1874, under which the plaintiff purchased, were the same lands, and it was admitted that the sheriff's deed to each of the purchasers covered the locus in quo. The foregoing evidence was offered as a part of the record under which the plaintiff claimed.

The defendant also introduced a deed from the sheriff to W. T. Stephenson, dated December 6th, 1873, reciting a sale to him under execution of 17th October, 1872. All of the evidence introduced by the defendant was objected to by plaintiff and admitted by the court.

The plaintiff then, with a view of showing that the deed from the sheriff to Stephenson of December the 6th, 1873, passed no title as against creditors of John W. Pate, offered evidence to show that before and at the said sale of December 6th, 1873, said Stephenson agreed with said Pate to lend and did lend him money enough to pay off the execution in the hands of the sheriff, with the understanding that the lands should be sold by the sheriff and an absolute deed made to said Stephenson to secure the repayment of the money loaned and interest; that just before the sale, Stephenson (Pate being present) asked the sheriff how much the execution and costs amounted to, and the sheriff replied that he thought $200 would cover it, and then Stephenson bid $202 for both tracts, and there was no other bid made. But when the plaintiff, as attorney for the plaintiff in the judgment, came to settle with the sheriff, it was ascertained that there was some sixty dollars due on the judgment, which the defendant refused to pay; that at the time of the sale, December 6th, 1873, the sheriff had notice that Stephenson was to lend the defendant the money. All of this evidence was objected to by the defendant and ruled out by the court, and the plaintiff excepted.

With the view of estopping the defendant from saying that Stephenson had title to the land, by virtue of the sheriff's deed to him, the plaintiff then offered in evidence a mortgage deed made by the defendant, December 8, 1873, for the land in controversy, to Stephenson to secure the purchase money for the land. This evidence was objected to by the defendant and ruled out by the court, and the plaintiff excepted.

Upon an intimation from the court that the plaintiff was not entitled to recover, he submitted to a nonsuit and appealed.

Messrs. Thos. N. Hill and W. C. Bowen, for plaintiff .

Messrs. R. O. Burton, Jr., and Willis Bagley, for defendant .

ASHE, J.

The exception taken by the plaintiff to the ruling of His Honor in admitting the endorsements on the executions as evidence on the part of the defendant is untenable. The executions were unquestionably competent evidence, and “a return...