Morrison v. Watson

This action was brought by Daniel M. Morrison against John G. Watson in a court of the state of North Carolina to recover possession of certain land. The jury found a verdict for defendant, and judgment was entered thereon, which, on appeal therefrom by plaintiff, was affirmed by the supreme court of the state. 7 S. E. 795, 101 N. C. 332. Plaintiff brought error.

This was an action in the nature of ejectment, brought April 11, 1883, in the superior court of Richmond county, in the state of North Carolina, to recover 100 acres of land in that county.

The case certified by that court to the supreme court of the state began as follows:

'The plaintiff claimed title to the land described in the complaint by virtue of an execution sale and sheriff's deed made pursuant thereto. The defendant denied that the plaintiff was the owner of the land, or that he wrongfully withheld possession thereof. He admitted being in the possession.

'The following issues were, without objection, submitted to the jury: First. Is the plaintiff the owner, and entitled to the immediate possession, of the land described in the complaint? Second. Did the defendant, at the time of the bringing of this action, unlawfully withhold possession thereof? Third. What damages is the plaintiff entitled to recover?'

The case then stated that the plaintiff gave in evidence a deed of the land from the sheriff to himself, pursuant to a sale thereof, for the price of $40, on June 9, 1879, under an execution duly issued April 5, 1879, upon a judgment rendered May 17, 1870, against the defendant, for $35, and interest from November 13, 1864, and costs on a promissory note shown by the judgment roll to have been payable at the date last mentioned; and that the plaintiff also gave in evidence the execution, and the officer's return thereon, stating that he levied it upon this land. The case also stated that 'no homestead was ever allotted to the defendant.'

The case then stated that 'the plaintiff, for the purpose of showing that the lands of the defendant were, in June, 1879, worth less than $1,000 and the amount of the judgment,' introduced, 'after objection by defendant and exception to its admission,' evidence tending to show that fact; that the defendant also introduced evidence upon the question of the value of the land, and set forth the testimony introduced by either party; did not show that any evidence admitted was objected to by the plaintiff; and continued and concluded as follows:

'The defendant duly objected to all of the testimony in regard to the value of the land, when it was offered, for that the defendant's right to a homestead and the value of his land could only be ascertained and determined in the manner provided by law, and not, in the first instance, by a jury impaneled to try the question of title. The court, in deference to the opinion of the supreme court in this case, admitted the testimony. Morrison v. Watson, 95 N. C. 479.

'The counsel for the plaintiff requested the court to charge the jury (1) that there was no evidence that the defendants were worth, in June, 1879, $1,000, and the judgment, interest, and costs, amounting to $83; (2) that, upon the whole evidence, the plaintiff was entitled to recover. The court declined to so instruct the jury, and the plaintiff excepted.

'The court then instructed the jury that they could consider the whole evidence, and, after ascertaining the value of the land per acre in June, 1879, they should make a calculation as to its total value. The court then explained to the jury the issues, and the way in which the testimony should be considered with respect to them, and instructed them that they could consider the return on the execution in passing upon the question whether the defendant had other property than the land covered by the sheriff's deed, and that, to recover in this action, the plaintiff must show by a preponderance of the testimony that the defendant's land was worth, in June, 1879, less than $1,000, and the amount of the judgment, interest, and costs, amounting to $83, and that the defendant had no other property which could have been sold to pay the judgment. Miller v. Miller, 89 N. C. 402.

'The jury found the first and second issues in the negative. Motion for a new trial for reception of the evidence objected to, and for refusing the instruction asked, and for error in the instruction given. Motion denied. Judgment in accordance with the verdict. Appeal by plaintiff.'

The supreme court of the state, on November 12, 1888, affirmed the judgment. 101 N. C. 332, 7 S. E. 795. The plaintiff, on September 4, 1890, sued out this writ of error.

S. F. Phillips and F. D. McKenney, for plaintiff in error.

W. W. Flemming, for defendant in error.

Mr. Justice GRAY, after stating the case, delivered the opinion of the court.