Hilliard v. . Phillips , 81 N.C. 99 ( 1879 )

Ashe, J.

There are but two questions presented in this case, the consideration of which involves and will determine all the exceptions taken and instructions prayed for on the trial: And they are,

1. Was there error in admitting the declarations of James Hilliard as to the fraudulent character of the deed executed by him to his brother, Ezekiel Hilliard, after its execution and while he was still in possession of the land ; and

2. Was there error in admitting parol proof as to the identity of the land in the deed executed by the sheriff to Jesse Womble?

As to the first point: We think it has-been settled by the decision of this court in the case of Yates v. Yates, 76 N. C., 142. It was a case very similar in its facts to this. In that case the defendant offered in proof a written affidavit, made by the vendor of the plaintiff after the execution of the deed by him to plaintiff, that the plaintiff had no deed from him, and if he had, it was a forgery. The plaintiff objected to the reading of the affidavit because it was an ex parte statement made by the vendor in the absence of the plaintiff, but the objection was overruled and the evidence admitted, the court assigning as a reason for its ruling that the unchanged and continued possession of the supposed grantor was competent evidence to impeach the supposed deed.' Twine's case, 1 Smith L. C. And the court proceed to say, “if the fact of possession is competent evidence, any acts or declarations of the possessor must also be competent as characterizing his possession. .This has been very often held in cases where the question was whether a prior deed from the possessor had been made in fraud of his creditors. The cases on this point are numerous. I cite the most recent in this court — Kirby v. Masten, 70 N. C., 540.” And it will be seen by reference to this case that it fully sustained the opinion of the court. We therefore hold upon this authority that there was no error in the admission of the evidence.

As to the second point: We hold there was no error. The description of the land in the deed of the sheriff to Jesse Womble, corresponds with the return of the levy by the constable upon the execution, and it conforms exactly to the requirements of the statute. Rev. Code, ch. 62, § 16. In the case of Brown v. Coble, 76 N. C., 391, which was an action to recover land that had been sold under a decree in a petition for partition, and the petition described the land as that on which John Brown died, seized and possessed in the county of Guilford, on the waters of‘'Stinking Quarter,” &c., it was held tobe sufficient; that the land might be identified by parol evidence. In Parks v. Mason, 7 Ire., 362; Held the levy is good if it follows the words of the statute, “ although it may require extrinsic evidence to identify it, as indeed,” said Chief Justice Ruffin, “ may be the case with the most accurate description in a deed.” In Blanchard v. Blanchard, 3 Ire., 105, where the levy did not conform to the terms of the description prescribed in the statute, it was held that the onus was thrown on the purchaser of showing by extrinsic evidence that the return does as completely identify the land as it would have been identified by a literal observance of the statute. To the same effect are Huggins, v. Ketchum, 4 Dev. & Bat., 414, and Smith v. Low, 2 Ire., 447. And again, in Moses v. Peak, 3 Jones, 520, which was a deed, and the description oftheland was “ all our right, &c., that we have in and to certain tracts of land that belong to the heirs of Zachariah Peak, deceased, lying and being in the county of Macon and state of North Carolina, lying on the Elijah creek and its waters in district eleven,” the court thought it sufficient to admit extrinsic evidence to fit the description to the thing.

Where the statute describes the terms of description to be used in a levy, and the deed of the sheriff is executed to consummate the sale had by virtue of the levy, we see no reason why the same description in the deed should not be sufficient, and subject to the same rules of evidence in regard to identity. His Honor in the court below very properly submitted to the jury upon the evidence in the case the question of the identity of the land levied on and conveyed by the sheriff, the existence of creditors of James Hilliard at the date of the deed to Ezekiel Hilliard, and the intent of the parties to said deed, whether fraudulent or not. The jury returned their verdict in favor of defendant, and the judgment of the court was in accordance therewith..