Wilson v. . Taylor

Davis, J., (after stating the facts). No issue in regard to the homestead was raised by the pleadings, and there was no question in relation thereto, as appears from the record, till after the verdict. The issues are raised by the pleadings, and whether by any act, however fraudulent and misleading, the owner can be estopped from claiming a homestead, except by deed with the consent of the wife, evidenced by her privy examination, as prescribed by Art. X, §8, of the Constitution, it is not necessary for us now to consider, and if it were, Edward Taylor, as appears from the evidence and verdict of the jury, having invoked the kindness and friendship of the plaintiff, and procured the purchase of the land for his own benefit, and for which, at his solicitation, the plaintiff had paid the claim of the defendants, does not present a very meritorious consideration. Hinson v. Adrian, 92 N. C., 121. In all the cases cited by counsel for the defendants, the claim to the homestead was presented by the pleadings. The instructions asked for were properly refused. “ They *280 did not bear upon the issues or tend to aid the jury in arriving at a conclusion.” The deed from the sheriff to the plaintiff contains a recital of the execution, levy and sale, and being the act of a public officer in discharge of his official duties, reciting how and by what authority he had made the conveyance, was prima facie evidence of the facts recited. Rutherford v. Raburn, 10 Ired., 144; Hardin v. Cheek, 3 Jones, 135; Miller v. Miller, 89 N. C., 402. In the first cited case Chief Justice Ruffin said: “In effect, no judgment need be shown in a suit between the defendant in the execution, or one bound by its teste, and the officer or purchaser; at all events, if the latter be not the plaintiff in the execution.” “Undoubtedly,” says the Chief Justice, “the Court would, at the instance of the defendant, set aside the execution if there were no judgment.” And so, if the execution and return did not conform to the judgment, and any prejudice to the defendant resulted therefrom, the Court would undoubtedly set it aside. In the case before us there was a judgment shown, but it did not exactly correspond with that recited in the deed, and there was also a conflict in the dates, but this variance was not fatal. Green v. Cole, 13 Ired., 425. In Rutherford v. Raburn, Hardin v. Cheek, and Green v. Cole, a broad and liberal construction has been placed upon' the Act of 1848, to be found in §1347 of The Code. The judgment declares that the plaintiff is entitled to a lien upon the land for the payment of the purchase money paid by him for Taylor, with the interest thereon, and that said lien - be discharged upon the payment of the same by the defendants, or any one of them, by the 1st day of January, 1888, and if not paid bj^ that day, then the land is to be sold upon the terms and by the commissioners narked in the judgment, and the proceeds applied, first, to the satisfaction of the judgment, and the surplus to the defendants. *281 The judgment must be modified so as to allow the defendants a reasonable time to pay, and thus modified is affirmed. No error. Affirmed.