Den on Demise of M'Kerall v. Cheek ( 1823 )

Whether the deed of the sheriff fairly obtained shall be (347) conclusive on the parties and all claiming under them, we do not deem it necessary to decide, for we think a preliminary question fairly grows out of the evidence, which should have been distinctly propounded by the judge to the jury, namely, whether the deed was fairly or fraudulently obtained; for a court of law has cognizance of the question, as well as a court of equity. This question fairly arises upon the evidence; the judge erred in telling the jury that the deed was conclusive without evidence of what the sheriff sold, without calling their attention to the circumstances under which it was executed and informing them that it did not pass the lands in controversy, if fraudulently obtained.

TAYLOR, C. J., concurred.

PER CURIAM. New trial.

Cited: Dobson v. Erwin, 18 N.C. 573; McArthur v. Johnson, 61 N.C. 320,321.