Basnight v. Smith

Clark, J.: The principal point in this case is decided in Manufacturing Co. v. Frey, at this Term. It is there held that where a patent issued for a tract of land reserving land within its limits “ previously granted,” that possession under such patent, but outside of the land “previously granted,” was not constructive possession of the excepted land, and that the patent was not color of title to the land so excepted, though the burden was on the party claiming under the exception to show that the land in question came within the exception. Here that has been done. The defendant in this case, however, further contends that no evidence was offered that John Hooker and Charles Horton were the same men from whom the taxes were due, except that the tax-list showed land listed and taxes therefor due from parties of the same name. It would be sufficient to say that this point was not raised by exception 233 below, nor By prayer for instruction, nor by issue tendered. It cannot be raised here for the first time. If it could be, however it might have been formerly (Fox v. Stafford, 90 N. C., 296), by the present law, Acts 1887, ch. 137, sec. 62, Acts 1889, ch. 218, sec. 63, the certificate issued to the plaintiff as purchaser at the tax sale was “ presumptive evidence of the regularity of all prior proceedings.” This presumption was not rebutted. No Error.