Doe on demise of Walker v. Greenlee, 10 N.C. 281, 3 Hawks 281 (1824)

Dec. 1824 · Supreme Court of North Carolina

10 N.C. 281, 3 Hawks 281

Doe on demise of Walker and wife v. Greenlee.

1 From Wilkes.

When a purchaser under the sheriff, in support of his title, produced a mere memorandum from the clerk’s docket of the amount of the judgment, dated in 1733, and proved that nothing more could be found among the records connected with the suit; it was held that the entry, having been made in a new and frontier county, at the close of the revolutionary, war, might be received as a record, though if the judgment-were of recent date it would be.otherwise.

Ejectment, tried before Badger, judge.

The wife of the lessor of the plaintiff claimed under the original grantee of the land, William Price, and regularly deduced title.

The defendant claimed as heir at law to one Janies Greenlee, under a judgment .obtained by said Janies against William Price, an execution and sheriff’s sale thereon; and in proof of his title, the defendant produced a writ of Ji. fa. and a deed from the sheriff to James Greenlee, as the highest and best bidder, dated in 1783. To prove the existence of the judgment on which this fi. fa. issued, the defendant produced a paper certified by the clerk of the Court, and apparently an extract from the clerk’s docket, in these words, viz:

State of North Carolina,') Court of Pleas and Quarter Sessions, Burke County. $ July Sessions, 1783.

Trial Docket, July 1783,

James Greenlee Levied on his land. Judgment vs- > Original attachment. J 0y default, and writ of inquiry, William Price. J CVerdict, 41?. 2s. 6d- and costs*

This was objected to, as being insufficient to support the title of a purchaser at a sheriffs sale; and the defendant produced a witness, who swore that he had searched ^ie recor(^s °f Burke county, and that the paper produced contained a copy of every original paper to be f0|m(i among the records of that Court relative to the suit, except the attachment on which the proceedings had taken place, and he believed he had seen that among the papers.

The presiding judge sustained the objection, and instructed the jury that the defendant had not shown such a record as would support his ancestor’s purchase at the sheriff’s sale. Verdict for plaintiff, new trial refused, judgment and appeal.

Wilson, for defendant,

to show that the judgment of a Court of competent jurisdiction is conclusive until reversed, cited 3 Murph. R. 59. Figot v. Davis, (Silawks 25.) Stark v. Chesapeake Ins. Co. (7 Crunch 420.)

And to show that the judgment here was regular, he deferred to Conf. R. 86. Idem 301.

Gaston, contra, contended,

1. That the transcript offered was not evidence, unless it contained a record of the whole proceedings. (Corn. D. {(Evidence A.” 4. Peake 62, 3. Gilb. Ev. 17. 23. 3 Inst.. '173. 1 Phillips -290. Butter’s JV*. P. 227.)

2. That what was offered as evidence of a judgment was a nullity, because no cause, of action was set forth in regard to which there could be a default, there was no allegation to give the Court jurisdiction, such as defendant’s absconding, no property specified as levied on, a default, inquiry, judgment at the first term without any notice to the adverse party, and a general fi. fa. to sell any lands. (2 Hay. 73. Bryan v. Broxvn, decided in this Coui't July 1818, and not repoited.)

3. That at all events the judgment was so grossly irregular, that the party to it'could not claim its benefit. (2 Tidd 936. 2 Hay. 80.)

Hall, Judge.

If the record offered purported to be a judgment of recent date, I should hesitate befoi’e I could ... , _ , ., . , . receive it as such. But it is a record of 1783, made m a ■ new and frontier County Court at the close of the revolutionary war, at a time and in a place where we may presume the records were made and kept in a slovenly manner. Under these circumstances I think the record. offered as a judgment may be deemed sufficient. The .sheriff’s return- under the attachment, is, that he had levied on his land; there was a judgment by default; and on the writ of inquiry the jury assessed damages to 41?. 2s. 6d. and costs. On this verdict we'must take it, that the Court gave judgment, from that judgment a fiare fa-das issued, a sale- took place under it, and the sheriff* made a deed of conveyance for the lands in question to James Greenlee the highest bidder: the affidavit of Green-lee, and the attachment, are not shown, but we may reasonably presume they existed, from the proceedings which have taken place in Court afterwards,' and which are now shown. For these reasons, I think the rule for a new trial should be made absolute.

The other judges concurred.