Citation Numbers: 122 N.C. 587
Judges: Clark
Filed Date: 4/19/1898
Status: Precedential
Modified Date: 7/20/2022
Upon the complaint and answer it appears that both sides claim under the “North Carolina Estate Company, Limited”. The 8th prayer for instruction by the defendants is that, ordinarily, when it is shown that both parties hold through a title from a common source it is not necessary to go beyond the common title, unless a superior title be shown by one of the parties with which he connects himself by a chain of title, but in this case the title of the defendants derived from the common source having been adjudged void (upon the former appeal ¡.in this case), the defendants are not estopped from showing a better outstanding title in any person other than the common source of title. There is not a scintilla of evidence connecting the defendants with any outstanding title; and upon their pleadings they are estopped to deny the common source of title. The fact that their assertion of having that title in themselves has been adjudged invalid in this action, does not set them free now to assert a superior title in some one else with whom they do not connect themselves. But, if it did, it would not avail the defendants, as the holders of the alleged outstanding title of a past interest, if such were shown, would be merely ten
The defendants except because “5,000 acres being excepted from the grant of 1795 under which the plaintiff’s claim, the burden is on the plaintiffs to show that the land sued for is not the excepted part.” The law is well settled otherwise. “The locus in quo being within the boundary of plaintiff’s deed and defendant claiming under exceptions in said deed, it is clear that it is incumbent on him to bring himsplf within the exceptions by proof”. Steel & Iron Company v. Edwards, 110 N. C., 353; Gudger v. Hensley, 82 N. C., 481. Besides, the complaint is to recover “the lands remaining unsold and not excepted from the boundaries of the grant” and the answer says the defendants “are in possession of the land sued for and in controversy.”
Payment of taxes is some evidence of title (Austin v. King, 97 N. C., 339; Ruffin v. Overby, 105 N. C., 78) but, if it was offered to be shown here by competent proof,its exclusion was harmless error, for it having already been adjudged in this case (118 N. C., 700) that the defendants did not have the title of the “North Carolina Estate Company, Limited” which they set up in their answer, and not having connected themselves with any outstanding title nor shown possession for seven years under color of title, proof of payment of taxes for two or three years before action brought could have availed them nothing. Even evidence of adverse possession for a period less than the prescribed time is
The jury found, on competent evidence and proper instruction, that the conveyance to Hatterby and Clark-son, though absolute on its face, was a mere security for debt. It was therefore void as to the creditors of the North Carolina Estate Company, Limited, and to the plaintiffs who hold under a judgment and execution sale in favor of one of such creditors. Gregory v. Perkins, 15 N. C., 50; Gulley v. Macey, 84, N. C., 434. The unregistered deed of defeasance and bonds secured thereby, produced by the defendants in response to an order of the court (under The Code, Sections 578 and 1373) were competent to submit to the jury as evidence tending to show the nature of the transaction, without proof of their execution. Being in possession of the defendants, and the facts peculiarly within their knowledge, it devolved upon them to negative any inference arising from the existence of such papers. But this conveyance, even if it was an absolute deed, was not proved by the officers of the corporation but by the individual acknowledgment of Matthew Robins and Walter Mullens and the probate was fatally defective. Clark v. Hodge, 116 N. C., 761; Plemmons v. Improvement Company, 108 N. C., 614; Duke v Markham, 105 N. C., 131; Bason v. Mining Company, 90 N. C., 417. Its registration was therefore a nullity. Quinnerly v. Quinnerly, 114 N. C., 145; Long v. Crews, 113 N. C., 256; Duke v. Markham, supra, Todd v. Outlaw, 79 N. C., 235; DeCourcy v. Barr, 45 N. C., 181. The subsequent reprobate and reregistration in 1897, since the plaintiff’s title accrued and since this action was brought, can have no effect. Acts 1885, Chapter 147; Waters v. Crabtree, 105 N. C., 394.
Our conclusion upon the authorities is that docketing is only for the purpose of giving a lien, and is not a condition precedent to issuing an execution. If there is a docketed judgment in force at the sale of realty under execution the sale relates the title back to the date of such docketing. If no docketed judgment is in force under which the execution is issued, the title as against the defendant relates back to the levy but is subject to docketed judgments in favor of the plaintiffs in force at the date of the sale. Pipkin v. Adams, 114 N. C., 201; Code, Section 435.
The requirement in Section 448 that the date of the docketing should be stated in the execution is like the requirement to test the execution of the preceding term which is held directory. Bryan v. Hubbs, 69 N. C., 423; Williams v. Weaver, 94 N. C., 134.
The recital in an additional paragraph in the execution issued to Burke County of a levy on certain uncut walnut timber in Catawba County, and the order to the Sheriff of Burke County to sell it, though the attach-
Affirmed.