Rollins v. Henry
| Decision Date | 31 January 1878 |
| Court | North Carolina Supreme Court |
| Parties | W. W. ROLLINS and others v. R. M. HENRY and others. |
CIVII ACTION, to recover “The Sulphur Springs Lands,” tried at Fall Term, 1877, of BUNCOMBE Superior Court, before Schenck, J.
In the progress of the trial both parties admitted that the title to the land in controversy was originally in W. L. Henry, and that they both claimed under him.
The plaintiffs introduced a record of Haywood Superior Court in the case of Samuel Gudger, executor of Robert Henry, against W. L. Henry, in which a judgment was rendered for the plaintiff, Gudger, for $6222, on the 27th of May, 1872. Upon this judgment (which was not docketed in Buncombe), an execution issued to the Sheriff of Buncombe on the 3d of July, 1872, and was levied by him on the land in dispute, which was bought by the plaintiffs at the sale had on the 28th of September, 1872, and conveyed to them by the Sheriff's deed on day of sale.
The plaintiffs then offered in evidence the Judgment Docket of the Superior Court of Buncombe, which showed a judgment in favor of B. H. Merrimon against W. L. Henry, for $360,75, dated on the 29th of November, 1869. The defendants objected, insisting that a judgment signed by the Judge, and in the judgment roll, was the proper and only way to prove a judgment. Objection overruled, and the evidence admitted, and then the plaintiffs proposed to ask the Clerk of the Court whether he had issued an execution on said judgment, the entry of which is as follows:
This was objected to by the defendants, objection overruled, and the Clerk testified that he issued an execution on this judgment to the Sheriff of Buncombe on the 26th of August, 1870. A Fi. Fa. on this judgment dated February 7th, 1870, and levied May 13th, 1870, on said land was also in evidence; and the Clerk testified that he issued a Ven. Ex. on March 14th, 1871, which after diligent search he could not find, and stated that it was never returned.
The plaintiffs also introduced a deed (“C”) from the Sheriff of Buncombe, dated on the 1st day of July, 1871, conveying said land to the plaintiffs. This deed recites executions issued from Buncombe Superior Court on judgments obtained at different times against W. L. Henry, and in favor of B. H. Merrimon, J. F. E. Hardy, Cashier, and sundry other creditors, by virtue of which the land was exposed to sale.
The plaintiffs also introduced a deed from J. L. Henry and wife to Pinckney Rollins and L. M. Welch, dated February, 11th, 1874, conveying their interest in said land. This deed was admitted to probate and ordered to be registered upon proof of the hand-writing of said J. L. Henry, and the defendants objected to the evidence on the ground of irregularity in the probate. Objection overruled.
The facts constituting the defence set up by the defendants are embodied in the opinion of this Court delivered by Mr. Justice RODMAN. Verdict for plaintiffs. Judgment. Appeal by defendants.
Messrs. J. H. Merrimon, and Merrimon, Fuller & Ashe, for plaintiffs .
Messrs. J. G. Martin & Son, and Battle & Mordecai, for defendants .
Both parties claimed under W. L. Henry, and it is unnecessary therefore to go behind his title.
I. The plaintiffs claimed title as follows:
1. In the Superior Court of Haywood County on the 27th of May, 1872, Gudger recovered judgment against said W. L. Henry, upon which, on the 3d of July, 1872, execution issued to Buncombe County, which was levied on the land in controversy. The land was sold on the 28th of September, 1872, and purchased by W. W. Rollins and Pinkney Rollins, who are plaintiffs, G. M. Roberts, who was made plaintiff by amendment, and J. L. Henry. The Sheriff conveyed to the purchasers on the same day. But this judgment was never docketed in Buncombe County. Possibly there may be cases in which a Sheriff's sale under a judgment not docketed in the County where the land lies, may avail something, but not in this case where the defendants are purchasers for value from the defendant in the judgment.
2. Plaintiffs “offered in evidence the Judgment Docket of the Superior Court of Buncombe which showed a judgment in favor of B. H. Merrimon against W. L. Henry, dated November 29th, 1869.” Defendants objected to its admission because it was not signed by the Judge, and was not a full copy of the judgment roll. It was, however, admitted, and we think it was competent.
The requirement that the Judge shall sign all judgments is merely directory, and his omission to do so will not avoid the judgment as to strangers, although it might in connection with other evidence be a proof that the judgment was fraudulent, or had not in fact been rendered by him.
As to the other ground. We consider the objection in substance to be, that from the record presented in evidence (marked “D” in the record of this case), it does not appear that any case between the supposed plaintiff, Merrimon, and W. L. Henry, was ever constituted in Court by any of the prescribed methods, so as to give the Court jurisdiction of any controversy between them; and that it does not appear that any summons was served, or that any case was agreed on and submitted, or that there was any confession of judgment. Supposing as we must that no more of the record exists than is offered in evidence, great weight would be due to this argument, if the question arose on a motion by the defendant to set aside the judgment for irregularity. But no one but the defendant in a judgment can avoid it for irregularity. As long as he is content to waive the irregularity, strangers cannot avail themselves of it collaterally. Jacobs v. Burgwyn, 63 N. C. 196. The record is not a nullity. It is taken from the Minute Docket of Fall Term, 1869, and is apparently the judgment of the Court, and by the words “pleas withdrawn,” it appears to have been rendered by the consent of the defendant.
We pass on to the evidence as to further proceedings under this judgment.
The plaintiffs produced in evidence a fi fa issued to the Sheriff of Buncombe on the 7th of February, 1870, and levied on the locus in quo on the 30th of May, 1870. They then offered to prove by the Clerk of the Court, that on the 14th of March, 1871, he issued a venditioni exponas on this judgment which was never returned and after diligent search could not be found in his office. This evidence was objected to but admitted as we think properly. It is too clear to need discussion that the contents of a lost execution, like any other lost writing, may be proved by parol. It may be that if the defendants had demanded it, the Judge should and would have required the plaintiffs to show that the missing executions were not in the possession of the Sheriff. But no objection was taken on that ground; and it has been held that if a party assigns an insufficient reason in the Court below for his objection to evidence, he cannot assign a different one in this Court.
The plaintiffs then for the purpose of showing a sale of the land in question put in evidence a deed from Young, Sheriff of Buncombe, in which he recites that by virtue of sundry executions against W. L. Henry, the parties to which are described by their names, and among them, an execution in favor of B. H. Merrimon, and also one in favor of J. F. E. Hardy, Cashier, (which may pass without notice at present) he had levied on the lands in controversy as the property of W. L. Henry, and sold the same on the 1st of July, 1871, when James L. Henry, G. M. Roberts, P. Rollins and W. W. Rollins became the purchasers, and he proceeded to convey the land, by a particular description, to them. The deed is dated July 1st, 1871, and is marked “C” in the record of this case.
In delivering the opinion of the Court in Edwards v. Tipton, 77 N. C. 222, I said arguendo that I was not aware of any case in which it had been held that the recitals in a Sheriff's deed were prima facie evidence of the judgment, levy, sale, &c., except under exceptional circumstances. The remark did not affect the case then under decision, and I made it on the authority of Owen v. Barksdale, 8 Ire. 81. I have since discovered that this case was apparently disapproved of on that point in Hardin v. Cheek, 3 Jones, 135. On this last case however it requires to be observed, that the execution sale under which the defendant claimed was made in 1775, and as the trial took place in 1855-- eighty years afterwards--the circumstances may be considered exceptional, and thus the two cases may be reconciled. On this question we have looked for authorities outside of this State, and we have found but few and they are not clear.
In Kelly v. Green, 53 Pa. 302, it was held that after proof of judgment and execution, a recital in a Sheriff's deed that he had given due notice of the time and place of sale, and that it was after an adjournment, is evidence of the truth of those recited facts, on the ground that the deed was an official act. In Osborne v. Tunis, 1 Dutch. (N. J.) 633-662, it is said “the recitals in a Sheriff's deed of a compliance with the requirements of a statute, has always been regarded as evidence of the fact.” And to the same effect is Hihn v. Peek, 30 Cal. 280, as...
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...J., says: "But as a wrong reason was assigned for the objection, we treat the case as if no objection had been taken" —and Rollins v. Henry, 78 N. C. 342, Kidder v. McIlhenny, 81 N. C. 123, and Jones v. Call, 93 N. C. 179, support the same rule. It was not necessary to allege the negligent ......
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...deed, held that the recitals in the deed were Prima facie evidence of the facts set forth. However, this Court, in the case of Rollins v. Henry, 78 N.C. 342, interestingly enough, in an opinion by Justice Rodman, clarified the holding in Harding v. Cheek, with this The rule which seems to b......
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Renn v. Seaboard Air Line Ry.
...J., says: "But as a wrong reason was assigned for the objection, we treat the case as if no objection had been taken" --and Rollins v. Henry, 78 N.C. 342, Kidder McIlhenny, 81 N.C. 123, and Jones v. Call, 93 N.C. 179, support the same rule. It was not necessary to allege the negligent act o......
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