Bailey v. . Justice

Walkee, J., after stating the case: It appears in the record that the appellant claimed a one-fourth interest in each of the lots B, C, and D as a tenant in common, but he also claimed that he bad purchased the entire interest in lot .D at a tax foreclosure sale. He recovered the one-fourth interest claimed by him, as the verdict and judgment will show, but the presiding judge was of the opinion, and so held, that be bad not offered evidence sufficient to locate the land bought by him at the tax foreclosure sale. It does appear by a record of the.suit of J. Mooney v. Rebecca Bailey and others, who are the heirs of James Bailey, Sr., that be bought certain land which the commissioner appointed by the court in that case bad sold to foreclose a tax purchase by the plaintiff Mooney, the land bought by him being described in the complaint in that action, but, as stated, the court ruled, and so instructed the jury, that there was no proof to show where the land is situated, or whether it was lot D or a part of that described in the complaint, the language of the court being, “There was no sufficient evidence to locate said tract”; that is, the land described in the record of the Mooney suit or in the commissioner’s deed, and as the evidence lias not been 'sent to this Court, we are, of course, unable to say whether or not this ruling was correct, or, in other words, whether there was such eVidence. We must see the evidence before we can say whether it tended to locate the land or identify it as *755 lot D and a part of tbe land described by tbe plaintiff in bis complaint. This Court does not presume error in tbe proceedings below, but be who alleges it must show it affirmatively on tbe record. The presumption always is that tbe ruling of tbe judge is correct, and it will be sustained unless prejudicial error appears. Todd v. Mackie, 160 N. C., 357; In re Smith’s Will, 163 N. C., 466, and Univ. Oil & F. Co. v. Burney, at this term (93 S. E., 912). Applying this rule of appellate courts in S. v. Smith, 164 N. C., 479, and Warren v. Susman, 168 N. C., 464, we sustained rulings of tbe Superior Courts because we did not know, in tbe one case, tbe nature of tbe evidence, and, in tbe other, the allegations of a pleading in regard to which tbe exceptions were taken and which were necessary to be known in order to determine whether or not there was error. We merely presumed tbe correctness of tbe proceedings below because we could not see any error in them as it was not made to appear. So here we cannot say whether there was proof as to tbe location of the land because tbe evidence is not in the record. We need not consider tbe other question, as to tbe purchase of tbe land at tbe tax sale, for it becomes immaterial if tbe land was not located, and tbe jury were instructed that it had not been and found accordingly. We have considered only what is in tbe case, and not what is in the assignments of error, unless based upon exceptions taken at tbe trial. An assignment of error is of no avail unless it rests upon an exception previously taken and appearing in tbe record. Todd v. Mackie, 160 N. C., 352; Worley v. Logging Co., 157 N. C., 490; Allred v. Kirkman, 160 N. C., 392. Our decision on tbe other question renders immaterial tbe other exceptions. No error.