Du Hadaway v. Driver

McCulloch, J., (after stating the facts.) The question presented here is one purely of fact; and the testimony is practically narrowed down to four witnesses, — two on each side. Two witnesses, R. E. Dee Wilson and Reg. Archillion, introduced by plaintiff, testify that they attended the sale by the commissioner, and had marked this tract of land, which was commonly known as the Price land, with the intention of buying it, but that it was not offered by the commissioner. They stated that they remained at the sale until the bottom of the advertised list of lands had been reached, except some town lots, when they, with many others, left the room. Appellee and Tucker both testified that this land and two other tracts were offered and publicly sold by the commissioner to Tucker, as reported to the court. Several other witnesses testified that Tucker was present at the sale, and bid for some tracts, but they could not remember the particular tracts for which he bid, nor whether he bought any of the tracts. Two of the witnesses say that Tucker told them as they left the place of sale that he had bought some land “out in Egypt,” the name by which the neighborhood in which this land was commonly designated. Of the four witnesses whose testimony is direct upon the issue, only one — Archillion—appears to be without interest in the suit. The firm of which Wilson is a member has purchased the lands from appellants, and he and his co-partners are the real parties in interest. On the other hand, Tucker may be said to be an interested witness, as his conduct is called in question by the suit. None of the witnesses have been impeached or otherwise discredited, except that Tucker is contradicted concerning the alleged use of the money he claims to have received as purchase-price from appellee. The two witnesses for appellant — Wilson and Archillion— testify positively that they took special notice of the fact that this land was not sold, and had reason for doing so; yet their testimony is to some extent of a negative character; as it is possible that, in a crowded place where a large number of tracts of land are rapidly sold, which is usually the case at tax sales, their attention might have been momentarily distracted, so as not to become aware of the sale of a particular tract. Appellee and Tucker both swear positively that the tract was sold, and it is our duty, if possible, to so reconcile the testimony of all the witnesses as to give due credit to each without rejecting the testimony of either. Appellants urge the improbability of Tucker having bought the land, as he was a young man only 22 years -old, and without means; but other disinterested witnesses say that Tucker bid for lands at the sale, and appellants concede that he bought two other tracts. Upon the whole, we cannot say that there is a preponderance of testimony in favor of appellant’s claim that the commissioner •did not sell the land. The report of sale and decree of confirmation are prima facie evidence that the land was sold, and places the burden of proof to the contrary on one who attacks the sale. The chancellor found that the 'preponderance was not in favor •of the plaintiffs, and we do not think that the testimony justifies •us in disturbing his finding. So the decree is affirmed.