Walston v. W. H. Applewhite & Co. ( 1953 )

75 S.E.2d 138 (1953) 237 N.C. 419

WALSTON et al.
v.
W. H. APPLEWHITE & CO.

No. 234.

Supreme Court of North Carolina.

March 25, 1953.

J. Faison Thomson & Son, Goldsboro, and J. Russell Kirby, Fremont, for plaintiffs, appellants.

W. Powell Bland, Bland & Bland and Paul B. Edmundson, Goldsboro, for defendant, appellee.

DENNY, Justice.

We have set out the pleadings and the evidence rather fully in our statement of facts for the reason we are unable to reconcile them with certain contentions argued in the respective briefs.

It will be observed that the plaintiffs do not allege in their complaint that the 5.9 acre tract of land, which they allege is owned in fee by Charles Walston, is subject to the dower of Mrs. Jeanette Day. Yet in their brief they do so contend. On the other hand, the defendant contends in its brief, that Charles Walston's tract of land is not subject to the dower of Mrs. Jeanette Day, and alleges in its answer that it has been in possession of this tract of land under color of title for more than seven years next preceding the commencement of this action. Furthermore, the defendant alleges in its answer that it obtained the judgment against Mrs. Willie E. Walston, as set forth in the statement of facts herein, and caused execution to be issued thereon, and at the execution sale became the purchaser of the land. But the answer does not allege the existence of any judgment or the issuance of an execution which would authorize the sale of the real estate of Charles Walston. However, the defendant in its answer does set out certain recitals contained in the deed from the Sheriff of Wayne County to the defendant and among them appears this statement: "That whereas a certain writ of execution issued out of the Superior Court of Wayne County in favor of W. H. Applewhite Company, Inc., plaintiff and against Willie Etta Walston and Charlie Walston, was to the Sheriff directed," etc.

Even so, the Judgment Docket, introduced in evidence, where the defendant's judgment against Charles Walston was docketed at the August Term, 1924, of the Superior Court of Wayne County, does not show that execution was issued thereon at the time the execution was issued on the judgment against his wife, Willie E. Walston, or at any other time.

Moreover, as to whether the Charles Walston 5.9 acre tract of land is subject to the dower of Mrs. Jeanette Day, it seems the parties themselves are uncertain as to the status of the land in this respect. But, there can be no doubt as to the conduct of the defendant in dealing with the property. According to the evidence, the defendant has occupied both tracts of land involved in this controversy since January 1, 1939, under leases from Mrs. Jeanette Day, the life tenant. And in order to get possession of these tracts of land, so long as Mrs. Jeanette Day lives, it would appear to be necessary, if the defendant wanted possession, to lease the property from her since the Sheriff's deed to the defendant expressly states that it conveys "all the estate, right, title and interest of the said Willie Etta Walston and Charlie Walston, Judgment Debtors * * *, the same being a remainder interest in fee after the life estate of the mother of Willie Etta Walston, whereof they were seized or possessed on the date of docketing of said Judgment (not judgments) in said County, * * *."

Therefore, the question we must decide is whether the court below, in light of the plaintiffs' allegations and evidence in support thereof, committed error in sustaining the defendant's motion for judgment as of nonsuit.

The plaintiffs offered sufficient evidence to establish title to the 30.1 acre tract of land in Mrs. Willie E. Walston, subject to the dower of her mother, Mrs. Jeanette Day; and to a fee simple title to the 5.9 acre tract in Charles Walston, and that they are the owners thereof as alleged, unless the title thereto has been divested by the execution sale referred to herein.

Mrs. Walston, one of the plaintiffs, testified that the Sheriff of Wayne County did not serve on her a copy of so much of the advertisement as related to the real property of the plaintiffs herein, and that she did not receive a copy of such advertisement through the mail before the purported execution sale on June 1, 1931, as required by G.S. § 1-330 (now G.S. § 1-339.54). This evidence is admissible and sufficient to carry the case to the jury on the question of notice. It was not controverted in the trial below by an official return made by a sheriff, as was the case in Lake Drainage Commissioners v. Spencer, 174 N.C. 36, 93 S.E. 435, and similar cases cited by the appellee.

In Williams v. Dunn, 163 N.C. 206, 79 S.E. 512, 514, Walker, J., in speaking for the Court on the identical question now before us, said: "The law requires a sheriff to advertise a sale under execution, and to serve a copy of the advertisement upon the defendant 10 days before the sale. Revisal, §§ 641, 642 (now G.S. § 1-339.54). A failure to comply with this provision of the statute, which is directory will not render the sale void as against a stranger without notice of the irregularity, nor can it be assailed collaterally, but in such a case the defendant may, on motion, or by direct proceeding, have the sale vacated." Bank of Pinehurst v. Gardner, 218 N.C. 584, 11 S.E.2d 872.

If the purchaser at an execution sale is a stranger to the proceeding, he is not bound to look further than to see that the one selling the propery is an officer, and that he is empowered to do so under an execution issued by a court of competent jurisdiction. Oxley v. Mizle, 7 N.C. 250; Mordecai v. Speight, 14 N.C. 428; McEntire v. Durham, 29 N.C. 151; Burton v. Spiers, 92 N.C. 503; Williams v. Dunn, supra; Phillips & Crew Co. v. Hyatt, 167 N.C. 570, 83 S.E. 804. But this rule does not apply where the purchaser at the execution sale is the judgment creditor, or his attorney, or any other person affected with notice of an irregularity. In such case, the sale may be set aside at the instance of the defendant in the execution, by a direct proceeding brought for that purpose in the county where the judgment was obtained, or by motion in the cause. Burton v. Spiers, supra; Rosenthal v. Roberson, 114 N.C. 594, 19 S.E. 667; Crockett v. Bray, 151 N.C. 615, 66 S.E. 666; Williams v. Dunn, supra; Craddock v. Brinkley, 177 N.C. 125, 98 S.E. 280; Walker v. Odom, 185 N.C. 557, 118 S.E. 2; McIntosh, North Carolina Practice and Procedure, section 991, page 1122. This last cited authority in section 734, page 852, says: "If the plaintiff in the judgment is the purchaser, and his title is questioned, he should show a proper judgment and execution under which he acquired title, while a stranger to the judgment is required to show only the execution. * * * The execution issues from the court and should be found there, or some entry of record, showing its issue and return."

It is the rule with us that the recitals in a deed executed by a sheriff pursuant to an execution sale, are prima facie correct, but they are secondary evidence only and before being admitted for that purpose the loss or destruction of the original record or records involved in the controversy, must be clearly proven. State Board of Education v. Gallop, 227 N.C. 599, 44 S.E.2d 44; Thompson v. John L. Roper Lumber Co., 168 N.C. 226, 84 S.E. 289; Person v. Roberts, 159 N.C. 168, 74 S.E. 322; Isley v. Boon, 109 N.C. 555, 13 S.E. 795. Cf. Powell v. Turpin, 224 N.C. 67, 29 S.E.2d 26, and Jones v. Percy, N.C., 74 S.E.2d 700

Ordinarily the statute of limitations does not begin to run against the rights of a remainderman to maintain an action to recover possession of the land until after the expiration of the life estate. Narron v. Musgrave, 236 N.C. 388, 73 S.E. 2d 6; Caskey v. West, 210 N.C. 240, 186 S.E. 324; Eason v. Spence, 232 N.C. 579, 61 S.E.2d 717. However, such remainderman is not required to wait until after the expiration of the life estate to bring an action to quiet title or otherwise protect his interest. Harris v. Bennett, 160 N.C. 339, 76 S.E. 217; Loven v. Roper, 178 N.C. 581, 101 S.E. 263; Narron v. Musgrave, supra.

In the instant case, whether the statute of limitations began to run against Charles Walston in 1931, will depend primarily on whether or not his land is subject to the dower of Mrs. Jeanette Day, and the sale on June 1, 1931, as to him, was made under proper and valid execution, after due advertisement and notice as provided by law.

It would seem, in light of the evidence offered in the trial below, with respect to the value of the plaintiffs' property in 1931, that the consideration paid by the defendants was inadequate under the then prevailing economic conditions. But inadequacy in price alone is not sufficient to avoid a sale. "But gross inadequacy of consideration, when coupled with any other inequitable element, even though neither, standing alone, may be sufficient for the purpose, will induce a court of equity to interpose and do justice between the parties." Weir v. Weir, 196 N.C. 268, 145 S.E. 281, 282.

Applying the principles of law set forth herein and the authorities cited, in our opinion, the court below committed error in sustaining the motion for judgment as of nonsuit.

The parties may desire to recast their pleadings in certain respects before entering upon another trial. That, however, is a matter for them and their counsel to decide.

The judgment below is reversed.

Reversed.