Bailey v. Justice, 174 N.C. 753 (1917)

Dec. 12, 1917 · Supreme Court of North Carolina
174 N.C. 753


(Filed 12 December, 1917.)

1. Appeal and Error — Presumptions—Instructions—Record-Trials.

The appellant must show error in the trial of the case in the Superior Court, and where, in an action involving the title to land claimed by him under a tax deed, the judge has instructed the jury to answer the issue against him, for insufficiency of evidence to locate the land, the judgment will be affirmed if .the record does not show the evidence upon which the instruction was based.

• 2. Appeal and Error — Assignments of Error — Objections and Exceptions.

An assignment of error, to be considered on appeal, must be based upon an exception previously taken and appearing in the record.

Civil actioN, tried before Shaw, J., and a jury, at March Term, -1917, of BuNcombe.

The action was brought to recover the possession of land, and the following verdict was returned by the jury:

1. Is the plaintiff James J. Bailey the owner of lot B and C on the court map, as alleged in the complaint, or any part thereof, and if so, what part ? Answer: Yes, one-fourth undivided interest in lots B and 0.

*7542. Is tbe plaintiff James J. Bailey tbe owner of lot D on tbe court map, as alleged in tlio complaint, or any part thereof, and if so, wbat part? Answer: Tes, one-fourth undivided interest in lot D.

3. Wbat'damage, if any,-is the plaintiff James J. Bailey entitled to recover of tbe defendants W. T. and C. D. Justice? Answer: None.

4. Is the defendant W. T. Justice tbe owner of tbe land sued for, to-wit, B, C, and D, or any interest therein, and if so, wbat interest? Answer: Yes, one-fourth undivided interest in said lots.

5. Wbat damage, if any, is tbe defendant W. T. Justice entitled to recover of tbe plaintiff? Answer: None.

6. Wbat interest, if any, has Ailsey McKesson, alias Ailsey O’Neil, in lots B, C, and D above referred to ? Answer: One-fourth undivided interest.

7. Wbat interest, if any, have tbe children of Charlotte Scales in lots B, 0, and 1) above referred to ? Answer: One-fourth undivided interest.

8. Wbat interest, if any, has Jones Bailey or his children in lots B, O, and I) above referred to? Answer: None.

•Judgment was entered thereon, and W. T. Justice appealed, the other appellant, Claude 1). Justice, having abandoned bis ax^peal.

J. Scroop Styles and Mark W. Brown for plaintiff.

George A. Shuford and Ernest G. Mick for defendants.

Walkee, J.,

after stating the case: It appears in the record that the appellant claimed a one-fourth interest in each of the lots B, C, and D as a tenant in common, but he also claimed that he bad purchased the entire interest in lot .D at a tax foreclosure sale. He recovered the one-fourth interest claimed by him, as the verdict and judgment will show, but the presiding judge was of the opinion, and so held, that be bad not offered evidence sufficient to locate the land bought by him at the tax foreclosure sale. It does appear by a record of the.suit of J. Mooney v. Rebecca Bailey and others, who are the heirs of James Bailey, Sr., that be bought certain land which the commissioner appointed by the court in that case bad sold to foreclose a tax purchase by the plaintiff Mooney, the land bought by him being described in the complaint in that action, but, as stated, the court ruled, and so instructed the jury, that there was no proof to show where the land is situated, or whether it was lot D or a part of that described in the complaint, the language of the court being, “There was no sufficient evidence to locate said tract”; that is, the land described in the record of the Mooney suit or in the commissioner’s deed, and as the evidence lias not been 'sent to this Court, we are, of course, unable to say whether or not this ruling was correct, or, in other words, whether there was such eVidence. We must see the evidence before we can say whether it tended to locate the land or identify it as *755lot D and a part of tbe land described by tbe plaintiff in bis complaint.

This Court does not presume error in tbe proceedings below, but be who alleges it must show it affirmatively on tbe record. The presumption always is that tbe ruling of tbe judge is correct, and it will be sustained unless prejudicial error appears. Todd v. Mackie, 160 N. C., 357; In re Smith’s Will, 163 N. C., 466, and Univ. Oil & F. Co. v. Burney, at this term (93 S. E., 912).

Applying this rule of appellate courts in S. v. Smith, 164 N. C., 479, and Warren v. Susman, 168 N. C., 464, we sustained rulings of tbe Superior Courts because we did not know, in tbe one case, tbe nature of tbe evidence, and, in tbe other, the allegations of a pleading in regard to which tbe exceptions were taken and which were necessary to be known in order to determine whether or not there was error. We merely presumed tbe correctness of tbe proceedings below because we could not see any error in them as it was not made to appear. So here we cannot say whether there was proof as to tbe location of the land because tbe evidence is not in the record.

We need not consider tbe other question, as to tbe purchase of tbe land at tbe tax sale, for it becomes immaterial if tbe land was not located, and tbe jury were instructed that it had not been and found accordingly.

We have considered only what is in tbe case, and not what is in the assignments of error, unless based upon exceptions taken at tbe trial. An assignment of error is of no avail unless it rests upon an exception previously taken and appearing in tbe record. Todd v. Mackie, 160 N. C., 352; Worley v. Logging Co., 157 N. C., 490; Allred v. Kirkman, 160 N. C., 392.

Our decision on tbe other question renders immaterial tbe other exceptions.

No error.