Thomas v. Hunslcker

• Decision Date: 19 May 1891
• Citation: 13 S.E. 221,108 N.C. 720
• Court: North Carolina Supreme Court
• Parties: Thomas v. Hunslcker.

13 S.E. 221

108 N.C. 720

Thomas

v.Hunslcker.

Supreme Court of North Carolina.

May 19, 1891.

Ejectment—Defenses—Title in Third Persons —Sheriff's Deed.

1. In ejectment, since the plaintiff must recover on the strength of his own title, defendant may show that the title to the land passed from plaintiff by a sheriff's deed to a third person, without connecting himself with the title of such person.

2. A judgment rendered by a court of competent jurisdiction, and a sale under execution thereon, are not void on the ground that when the judgment was rendered and sale made defendant was insane; and cannot be collaterally attacked in ejectment by defendant, where the sheriff's deed is introduced to show that plaintiff in ejectment has no title.

Appeal from superior court, Clay county; E. T. Boykin, Judge.

J. W. Cooper and T. F. Davidson, for appellant.

Batchelor & Devereux and E. C. Smith, for appellee.

Shepherd, J. We think there was error in refusing to give the fourth instruction, on the ground that the defendant could not show title out of the plaintiff without connecting himself with such outstanding title. This is a correct piinciple of law, but is applicable only where the defendant seeks to attack a title under which both himself and the plaintiff claim. Love v. Gates, 3 Dev. & B. 363: Gilliam v. Bird, 8 Ired. 280: Christenbury v. King, 85 N.C. 230; Ryan v. Martin, 91 N. C. 464. It is true that in our case both parties claim under Killian, but the defendant, under the instruction asked, does not propose to impeach Killian's title, but contends that, although the plaintiff may have derived title from him, it has been divested by sale under execution, and therefore he is not entitled to recover. In ejectment the plaintiff must recover upon the strength of bis own title, and it is always competent for the defendant to show title out of him where this can be done without encountering the rule of practice commonly called estoppel. Clegg v. Fields, 7 Jones, (N. C.) 37. Even had the defendant entered as the tenant of the plaintiff, hecould haveshown that the title of the latter had beendivept-ed byn sale under execution, and thus have resisted a recovery. Lancashire v. Mason, 75 N.C. 455. A fortiori, can this bed one where no such relation exists. It is urged, however, that the error is harmless, because there appears to have been no testimony identifying the land in question with that described in the sheriff's deed. The case states that the defendant offered no such testimony, but as it does not purport to set out the evidence in full, and as the ruling of his...