The plaintiff sues for possession of land, and alleges title. The defendant admits that he is in possession, and denies that the plaintiff has any title, and avers nothing more. Plaintiff and defendant claim under one Stiles — the former by a sheriff's deed, under a judgment docketed 8 January, 1894; the latter by a deed from Stiles, dated 13 December, 1893, but not delivered and recorded until 24 April, 1894.
The defendant contends that as it does not appear that any homestead was laid off by the sheriff the sale and deed to plaintiff are void. He does not aver in his answer that the homestead was not laid off, *Page 597 nor attempt to prove it, and it does not appear whether it was laid off or not. His Honor held that the burden of showing that it was laid off, or that the judgment debtor was not entitled to it, was upon the plaintiff, and that he could not recover. In this there was error.
A purchaser at a judicial or sheriff's sale, under a regular judgment and execution, has a prima facie title, because there are circumstances when the judgment debtor is not entitled to a homestead, as if the debt be for the purchase money, nonresidence or sale for taxes. One who seeks to avoid the prima facie title on the (956) ground of homestead rights must allege in his pleading specifically the facts upon which the homestead right depends, and the burden is upon him to establish such facts. Dickens v. Long, 109 N.C. 165;Fulton v. Roberts, 113 N.C. 421.
If, however, the fact that no homestead was allotted (in proper cases) appears, either by the admission of the parties or by evidence of either, it will prevent a recovery, although not specially pleaded. Mobley v.Griffin, 104 N.C. 112. Here nothing is alleged, admitted or proved, and the prima facie right will control. The case will go back, to the end that the parties may proceed as they are advised.
Reversed.
Cited: Marshburn v. Lashlie, 122 N.C. 240.