Johnson v. . Sink

9 S.E.2d 371, 217 N.C. 702, 1940 N.C. LEXIS 332

• Court: Supreme Court of North Carolina
• Decided: June 8, 1940
• Status: Published

Opinion

Stacy, O. J.

It is the position of the defendant that the commissioner’s deed under which plaintiff claims title to the locus in quo is void for the reason that the sale, of the premises was had without first allotting to the defendant his homestead. Fulton v. Roberts, 113 N. C., 421, 18 S. E., 510; Morrison v. Watson, 101 N. C., 332, 7 S. E., 795; McCanless v. Flinchum, 98 N. C., 358, 4 S. E., 359. The first and only reference to homestead appearing on the record is in the cross-examination of the plaintiff: “Q. Mr. Sink didn’t have any homestead allowed to him in this judgment of John A. Sink? A. Not that I know about.” This, it seems to us, is insufficient to overcome the presumption of regularity in the judicial proceeding. Corey v. Fowle, 161 N. C.,, 187, 76 S. E., 734; Mobley v. Griffin, 104 N. C., 112, 10 S. E., 142. Non constat that he may not have had a homestead allotted in other lands, or that he was entitled to homestead in the present land. At any rate, the burden was on the defendant to show that no homestead had been allotted to him. Fulton v. Roberts, supra. This he has not carried.

It may be that upon a proper showing, the case will ultimately be controlled by the decision in Cumming v. Bloodworth, 87 N. C., 83, rather than the conclusion reached in Cameron v. McDonald, 216 N. C., 712. However, upon the record as presented, prima facie at least, it would seem that the plaintiff has shown enough to defeat the motion to nonsuit. Mobley v. Griffin, supra; Fulton v. Roberts, supra.

Reversed.