Buie v. . Scott

ClaiíK, J.: It was competent to show by parol testimony that the note upon which the judgment was rendered (under which the land was sold) was executed prior to 1868. Dail v. Sugg, 85 N. C., 104. In that case, as in this, the judgment had been rendered in the Justice’s Court, but docketed in the Superior Court, and the original papers lost. When this case was here before (107 N. C., 181) this evidence was rejected because the witness by whom it was then offered to prove this fact was incompetent under The Code, §590. So, also, it was held that it could be shown by parol that the judgment was rendered on a debt for the purchase-money of the land, though not recited in the judgment. Durham v. Wilson, 104 N. C., 595. In Mobley v. Griffin, 104 N. C., 112, it is held that if a Sheriff’s deed in plaintiff’s chain of title is defective by reason of the home *377 stead not having been laid off against tlie execution, advantage can be taken of the defect without its being specially pleaded by the defendant. This is followed in Buie v. Scott, 107 N. C., 181. This is not affected by Dickens v. Long, 109 N. C., 165, which simply holds that in proceedings to sell land to make assets a party claiming a hogiestead who does not set it up is barred by the judgment in that action. It now appears that the judgment was upon a debt contracted in 1861. The defendant in the execution was therefore not entitled to a homestead. The judgment below correctly declared the purchaser the owner of. the land and entitled to recover, subject only to the widow’s right of dower, if entitled thereto (Patton v. Asheville, 109 N. C., 685), which question we understand is not prejudiced by the judgment. If so advised the widow can take proper steps to have her dower laid off. Subject to such possible action the plaintiff is entitled to his writ of possession upon the judgment. We find No Error.