Hinson v. . Morgan and Hinson v. . Baumrind

Winborne, J. The assignments of error brought up for consideration fail to show error in the judgment below. First: It is contended by appellant that there is error in the exclusion of the testimony of the witness J. W. Lassiter to the effect that he knew all about his wife’s business and knew that she did not pay anything for the deed from the commissioner, and that Z. Y. Morgan did not pay anything to her for the deed to him, and that he had never heard her say that she paid Morgan any money or that he paid her any money. It is clear that all of this evidence comes within the ban of the hearsay evidence rule. The witness was permitted to testify as to what occurred in his presence with respect to the consideration passing between the parties. Any other knowledge he had is necessarily predicated upon hearsay, and is incompetent. This disposition of the exception renders it unnecessary to consider the competency of the evidence with respect to the provisions of G. S., 8-51, relating to examination of a witness in his own behalf when other party is dead. Second: Appellant contends in the main that there is sufficient evidence in the record to take the ease to the jury on the question as to *745 whether the commissioner purchased at bis own sale. It is a well settled principle of law that a commissioner appointed in a judicial proceeding to sell land may not purchase at his own sale, even though he acts fairly. If he does, the sale is voidable, and may be set aside as of course upon proper and reasonable application of the parties interested. Am. Jur., 31-474, Judicial Sales, section 141. Davis v. Doggett, 212 N. C., 589, 194 S. E., 288. In this connection for purposes of consideration of the question raised, we may pass other questions (1) as to whether plaintiff, in her attack upon the proceeding, may maintain an independent action, or (2) whether she must proceed by motion in the cause, and (3) as to the timeliness with which she has proceeded in relation to provisions of G. S., 105-393, and consider the challenge to the presumption arising upon the regularity of the tax foreclosure proceeding. The judgment roll in the tax foreclosure proceeding offered in evidence by plaintiff, shows upon its face that the proceeding is regular and in compliance with the statutory requirements in actions to foreclose tax liens. G. S., 105-391. And the deed from the commissioner to the purchaser upon its face purports to be in compliance with and in conformity to the provisions of the judgment in the tax foreclosure proceeding by which the sale to purchaser was confirmed. The consideration named in a deed is presumed to be correct. Faust v. Faust, 144 N. C., 383, 57 S. E., 22. Ex Parte Barefoot, 201 N. C., 393, 160 S. E., 365. And while the consideration may be inquired into by parol evidence, we find no sufficient evidence to contradict the recital. However, plaintiff points to these circumstances to raise a reasonable inference that Willie Mae Lassiter, the assignee of the purchaser at the commissioner’s sale, did not pay to the commissioner the $1,560.00, the total amount of the bids for the several tracts of land sold and assigned to her: 1st: The testimony of the husband of Willie Mae Lassiter bearing upon her ability to pay, as he understood it. 2nd: The fact that Willie Mae Lassiter and husband conveyed to Z. Y. Morgan three of the five tracts conveyed to her by Z. Y. Morgan, commissioner, in less than a month after the date of the deed to her, both of which deeds were filed for registration on the same day, fifteen minutes apart. 3rd: The costs were not paid until 20 September, 1937, and none of the taxes involved were paid until 31 August, 1937. And 4th: The tax scrolls offered in evidence by plaintiff fail to indicate that the full amount of the taxes were paid. All these combined amount to no more than a suspicion, if they rise to that dignity. They rest in speculation. Court proceedings, and deed pursuant thereto, may not be upset on evidence of such character. *746 Other questions debated in briefs filed need not be considered. The judgment below is Affirmed.