{
  "id": 2086808,
  "name": "Doe on the dem. of CHARLES HARDIN vs. JOHN CHEEK",
  "name_abbreviation": "Doe on the dem. of Hardin v. Cheek",
  "decision_date": "1855-12",
  "docket_number": "",
  "first_page": "135",
  "last_page": "138",
  "citations": [
    {
      "type": "nominative",
      "cite": "3 Jones 135"
    },
    {
      "type": "official",
      "cite": "48 N.C. 135"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [],
  "analysis": {
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    "word_count": 1111
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  "last_updated": "2023-07-14T17:04:13.305795+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Doe on the dem. of CHARLES HARDIN vs. JOHN CHEEK."
    ],
    "opinions": [
      {
        "text": "Nasii, O. J.\nSeveral points are embraced in Ids Honor\u2019s charge. The first is decisive of the case, and renders it unnecessary to consider the others. The defendant claimed title to the land in dispute, under Archibald McNeil, who derived title under an execution sale made by the sheriff of Cumberland, by virtue of an execution against Charles Shearing, under whom the plaintiff claims title. The sale was made in 1775. Charles Shearing died in 1786, and in 1788 his widow and children abandoned the possession of the land. The defendant showed a regular chain of title from McNeil to himself. Hie plaintiff objected that there was no sufficient judgment to warrant the issuing of the execution under which the sheriff of Cumberland sold the land in controversy ; nor was there any evidence that the sheriff either levied on the land or sold it. Ills Honor charged the jury, that it was not necessary for a purchaser at a sheriff\u2019s sale (not being the plaintiff in the execution) to show the j udgment on which the execution was founded. But if the evidence satisfied them that the sheriff actually levied the execution against Charles Shearing, on the land in controversy, and sold it at public sale, for a valuable consideration, to Archibald McNeil, then the title passed to him, and the defendant was entitled to their verdict.\nThe first branch of the charge is in conformity with the decision in Rutherford and Rayburn, 10 Ire. 144. The evidence upon the second branch of the objection was the sheriff\u2019s deed to McNeil, in which he recites the levy and the sale. It was insisted that the recital in a sheriff\u2019s deed vas no part of the deed, and was therefore no evidence of the fact recited. This objection was founded, we presume, on what fell from the Court in the case, Owen v. Barksdale, 8 Ire. Rep. 81, in which, the Court say, that a sheriff\u2019s deed is not evidence of the fact. If the Court intended to convey the idea that a recital in a sheriff\u2019s deed is not any evidence of the facts set forth in it, we do not concur in the opinion, but deem it an error. \"We hold that the recital in the deed, was 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. If a sheriff\u2019s deed have no recital, or sets forth in it an insufficient execution, the purchaser may prove, by any legal evidence, that the officer, at the time of the sale, had a sufficient execution, and for this purpose the sheriff is a competent witness; or it may be proved by other testimony. Carter v. Spencer, 7 Ire. 14, and McEntyre v. Durham, 7 Ire. 151. If, however, the Court intended to- say that a sheriff\u2019s deed, not containing any recital, did not, of itself, prove that the sheriff at the time of the sale had any sufficient execution to warrant the sale, we see no error in it. diarios Shearing, against whom the execution issued, died in 1186. At that time he had no seisin in the land in question, it having been duly sold, and could transmit to his heirs no heritable blood in it. The plaintiff, therefore, who claims under him by descent, or under his sons, has no title to the premises in dispute; but the title under the facts was in the defendant.\nPer Curiam.\nThere is no error, and judgment is affirmed.",
        "type": "majority",
        "author": "Nasii, O. J. Per Curiam."
      }
    ],
    "attorneys": [
      "Bryan, for plaintiff.",
      "Kell/y and IlaugM&n, for defendant."
    ],
    "corrections": "",
    "head_matter": "Doe on the dem. of CHARLES HARDIN vs. JOHN CHEEK.\n\"Where the purchaser of land at a sheriff\u2019s sale is not the plaintiff in the judgment and execution at whose instance it is sold, no judgment need be shown.\nThe recitals in a sheriff\u2019s deed, of an execution, levy, and sale, are prima facie evidence of those facts. ( Owen v. Barlcsdale, 8 He. Rep. 81, commented on.)\nAction of ejectment, tried before his Honor, Judge Dick, at the special term (Nov. 1855,) of Moore Superior Court.\n\u2022 The plaintiff showed a grant from the State to one John Tyson, dated 30th of September, 1748, for the land in controversy ; also several mesne conveyances down to John Shearing, who, by deed dated 2nd of December, 1766, conveyed to Charles Shearing. The lessor of the plaintiff j>roved that he was the heir-at-law of Charles Shearing\u2019.\nThe defendant claimed title to the land in dispute by a regular series of conveyances from Archibald McNeil to himself. In the year 1775, the sheriff of Cumberland, one Malcom McNeil, sold this land at public auction to Archibald Mc-Niel, and made him a deed for the same. The defendant offered in evidence the transcript of a record of the County Court of Cumberland, setting forth a memorandum on the docket, of a judgment at July term, 1771, against Charles Shearing, for costs in a suit that he had brought against one David Stroud, and which at that Court was \u201c discontinued also a fieri facias issuing on this judgment, which was returned to January term, 1775, endorsed, \u201c satisfied by sale.\u201d The sheriff\u2019s deed to Archibald McNeil recites that, \u201cwhereas, by sundry executions issuing from the. county of Cumberland against Charles Shearing, for the sum, &c., dwreeted and delivered\u201d to him as sheriff, he levied on the land in question, and sold it; also containing the usual'and proper terms of a sheriff\u2019s deed for land sold at execution sale.\nIt was insisted by the plaintiff, 1st. That there was no sufficient judgment shown. 2nd. That there was no evidence that this land was levied on and sold ; and that the recitals in the sheriff\u2019s deed were not evidence of those facts. There were various other questions presented in the bill of exceptions and argued in this Court, which, from the view taken of the case by tlieir Honors, become immaterial.\nUpon the questions above presented, his Honor below charged the jury, that it was not necessary for a purchaser at a sheriff\u2019s sale, not being the plaintiff in the judgment, to show any judgment at all; but if the evidence satisfied them, that the sheriff of Cumberland actually levied the execution against Charles Shearing, on the \u25a0 land in controversy, and sold it at public sale, and Archibald McNeil was a lonafide purchaser \u25a0 for a valuable consideration, the title passed to Archibald McNeil, and defendant (claiming under him) was entitled to their verdict. Plaintiff excepted.\nVerdict for defendant. Judgment and appeal.\nBryan, for plaintiff.\nKell/y and IlaugM&n, for defendant."
  },
  "file_name": "0135-01",
  "first_page_order": 143,
  "last_page_order": 146
}