Lovett v. . Slocumb

Avery, J. after stating the case: "Where a party to an action asks as affirmative relief, the possession of land, and alleges that his adversary, who wrongfully withholds it, is insolvent, and the latter directly admits or fails to deny the *113 allegation, it only remains for the action in order to establish his right to demand the appointment of a receiver to take charge of the rents and profits, to show that he has set up in an affidavit, filed under the sanction of the Court, or in a verified pleading in the cause, used as an affidavit, an apparently good title either not controverted at all or not unequivocally and sufficiently denied by the affidavits of the claimant in possession. Code, § 379, (1); McNair v. Pope, 96 N. C., 502; Levenson v. Elson, 88 N. C., 182; Twitty v. Logan, 80 N. C., 69; Bryan v. Moring, 94 N. C., 694; Oldham v. Bank, 84 N. C., 304. If we concede that no title passed to the defendant Taylor by the sale on the 19th of March, since this action was brought, it still appears that the defendant Slocumb claims title in himself to an undivided interest in the land in one paragraph of his answer, to-wit, one-third, and in another paragraph, to the whole, by virtue of a deed of release executed by the plaintiff to him on November 24th, 1888, whereby he surrendered to Slocumb all of his right, title and interest. He refers, also, in his answer to the book and page of the Register’s records, where the deed of release is recorded, in order to corroborate his statement and to show that the deed is competent as evidence of title in him. The plaintiff fails to deny that Slocumb’ was, prior to the execution of any of the mortgage deeds mentioned, his tenant in common as to one-third. But if he had Qontroverted this claim, his denial of the allegation that he had released all of his right and title to Slocumb by a deed, which has been proved and recorded, is so equivocal that it must be regarded as an admission of the fact of executing it with the qualification that he did not intend at the time to do so. The execution of the deed having been proved, there is a presumption that it is valid and operates to pass the interest of the plaintiff in the land to Slocumb. If the plaintiff had sought to accomplish two objects, first, to cancel that convey- *114 anee on the ground of fraud, and then the mortgage, because the lien had been discharged by payment, the burden would have rested on him to successfully impeach a deed which apparently passed a good title to the grantee. When he contents himself with the demand, “that on the 24th of November, 1888, or any other time, he released, or intended to release, his interest in the land to said A. H. Slocumb,” his statement is not a sufficiently explicit one to raise an issue as to its execution. The deed of release, having been proved and recorded, is of itself prima facie evidence that the interest of the plaintiff has been conveyed to Slopumb, and of his right as against the plaintiff to demand the appointment of a receiver. Affirmed.