McKee v. . Lineberger , 87 N.C. 181 ( 1882 )

This appeal comes up upon exceptions taken by the defendant to the admission of evidence, and the refusal of the judge to give the instructions asked for.

The first exception was to the admission of a sheriff's deed in evidence, before there had been any evidence introduced to show any suit or action, as a foundation for issuing the execution.

There is no force in this exception. The plaintiff, as he stated to the court he would do afterwards in the progress of the trial, offered in evidence the record of the judgment and execution under which the sale was had, in pursuance of which the deed was executed to him by the sheriff. If the plaintiff had failed to produce the record of the judgment, or at least the execution, the error might have been readily cured by the court's withdrawing the evidence of the deed from the consideration of the jury; but the evidence was supplied, and it is a matter entirely within the discretion of the court as to the order in which evidence should be adduced before a jury.

The second exception was to the admission in evidence of the transcript of the docketed judgment of Wright against Lineberger, and the certified copy of the judgment in the supreme court of McKee against Lineberger, upon the ground that there was no evidence to show any suit constituted in either court on which said judgments were or could be rendered.

Where the purchaser at a sheriff's sale is the plaintiff in the execution, in an action by him to recover the land purchased, it is encumbent on him to show both a judgment and execution; but if he is not the plaintiff in the execution, he need only show the execution. Rutherfordv. Raburn, 32 N.C. 144. In this case, if the plaintiff acquired any title under the sheriff's sale, if must have been under the Wright judgment, for the counsel for the defendant were understood to admit that the plaintiff could not acquire any title under the execution from the supreme court; therefore he could only become (186) a purchaser under the Wright judgment and execution, to which he was a stranger, and in that case he would only be required to show an execution issuing from a court of competent jurisdiction, a levy, or as the case might require, a docketed judgment, and a sale.

The next exception to the evidence was to the admission of the testimony of the plaintiff to the fact that the executions of Wright and McKee were both in the hands of the sheriff at the time of the sale, because Rhyne was dead and the witness was incompetent under C.C.P., Sec. 343.

The objection was properly overruled. The knowledge of the fact that the executions were in the hands of the sheriff, was not necessarily obtained by a communication or transaction with him. The witness may have seen them in his possession, or he may have acquired the information by hearing the sheriff state the fact to some one else. But putting it in the strongest point of view for the defendant by conceding that the knowledge of the fact was obtained from a communication with the sheriff, there is no representative of his a party to this suit, and even conceding that the sheriff was the agent of the defendant in the sale of the land, it would not be incompetent for the witness to speak of a conversation with him.Morgan v. Bunting, 86 N.C. 66; Lockhart v. Bell, 86 N.C. 443.

The last exception to the evidence was to the reception of the recital in the deed of the sheriff of the executions of Wright and McKee, as evidence of the levy and sale. There can be no question about the admissibility of this evidence. It was expressly and unqualifiedly held in the case of Hardin v. Cheek, 48 N.C. 135, that the recital in a sheriff's deed is prima facie evidence of the facts set forth, it being the act of a public officer in discharging his official duties, reciting how and by what authority he had made the conveyance, nevertheless open to proof that the fact did not exist. (187)

The remaining exception to be considered was to the refusal of the judge to charge the jury that "if the plaintiff had the land sold on his judgment and received the purchase money or a part thereof, and afterwards buys under another execution of older docketing together with an execution in his own favor, the first purchaser would get the title." This exception was based upon the idea that the defendant would acquire under the circumstances mentioned the better title, by reason of an estopped in pais upon the plaintiff. But we do not think the doctrine of estoppel has any application. For the reason above assigned, the execution from the supreme court should be considered as out of the question. The purchase then made by the plaintiff at the sheriff's sale was under the execution upon the Wright judgment, to which the plaintiff was a stranger and had the same right to buy under it as any other person.

There is no error. The judgment of the superior court must be affirmed.

No error. Affirmed.

Cited: Miller v. Miller, 89 N.C. 405; Farrior v. Houston, 100 N.C. 374;Shaffer v. Bledsoe, 118 N.C. 281; Wainwright v. Bobbitt, 127 N.C. 278;Person v. Roberts, 158 N.C. 171; Riley v. Carter, 165 N.C. 338.