On the first issue submitted the court repeatedly charged the jury to the effect that the burden of proof on the first was upon the defendants to satisfy the jury by the greater weight of the evidence, or by the preponderance of the evidence, that the issue should be answered in the negative as they, the defendants, contended it should be answered. Among similar instructions, the court told the jury for its guidance: “And I instruct you, gentlemen, if you are satisfied from the evidence and by its greater weight or preponderance thereof, the burden being on the defendants, that this notice or a copy thereof of like character with the notices posted elsewhere and published in a newspaper, was not published by posting to the world at Holshouser’s store in Blowing Rock, until the 12th of April, 1943, then I instruct you that would not be a valid posting, and if you so find from the evidence and by the greater weight or preponderance thereof, you should answer the first issue No, the burden being on the defendants.” And also, “Such a showing, gentlemen, as I have already told you, constitutes a prima facie case that the sale was made, the burden being on the defendants to show that the sale was made under an improper posting, that the posting was not properly done, and that the terms required in the deed of trust were not met.”
Such instructions, together with others of like import, are made the bases of exceptive assignments of error, and we are constrained to hold that such assignments are well taken.
While it is true the recitals in the foreclosure deed from the substituted trustee to the last and highest bidder at the foreclosure sale, that is, the deed from Holshouser, Trustee, to the Jefferson Standard Life Insurance Company, are prima facie evidence of the correctness of the facts therein set forth, and the burden of proving otherwise is on the person attacking the sale, in this ease the defendants, Dillingham v. Gardner, 219 N. C., 227, 13 S. E. (2d), 478, still the burden of proof of the issue remains on the plaintiff who asserts the affirmative thereof, and this burden never shifted to the defendants. The defendants had a *566right to introduce evidence to rebut the prima facie case made out by the recitals in the trustee’s deed or to decline to introduce evidence and thereby assume the risk of an adverse verdict on plaintiff’s evidence. The most that a prima facie ease does, when made out, is to warrant but not to compel a verdict, Mfg. Co. v. R. R., 222 N. C., 330, 23 S. E. (2d), 32. “. . . the prima facie case is only evidence, stronger, to be sure, than ordinary proof, and the party against whom it is raised by the law is not hound to overthrow it and prove the contrary by the greater weight of evidence, but if he fails to introduce proof to overcome it, he merely takes the chance of an adverse verdict, and this is practically the full force and effect given by the law to this prima facie case. He is entitled to go to the jury upon it and to combat it, as being insufficient proof of the ultimate fact under the circumstances of the case, but he takes the risk in so doing, instead of introducing evidence.” Brock v. Ins. Co., 156 N. C., 112 (116), 72 S. E., 213. See also Speas v. Bank, 188 N. C., 524 (530), 125 S. E., 398.
The rule with us is stated in Cotton Oil Co. v. R. R., 183 N. C., 95, 110 S. E., 660, and again in Mfg. Co. v. R. R., supra, and is taken from 1 Elliott on Evidence, 139, as follows: “The burden of the issue, that is, the burden of proof in the sense of proving or establishing the issue or ease of the party upon whom such burden rests, as distinguished from the burden or duty of going forward and producing evidence, never shifts, but the burden or duty of proceeding or going forward often does shift from one party to the other, and sometimes back again. Thus, when the actor has gone forward and made a prima facie case, the other party is compelled in turn to go forward or lose his case, and in this sense the burden shifts to him. So the burden of going forward may, as to some particular matter, shift again to the first party in response to the call of a prima facie case or presumption in favor of the second party. But the party who has not the burden of the issue is not bound to disprove the actor’s case by a preponderance of the evidence, for the actor must fail if upon the whole evidence he does not have a preponderance, no matter whether it is because the weight of evidence is with the other party or because the scales are equally balanced.”
Since there must be a new trial for the errors indicated in the charge, it becomes unnecessary to comment upon the other interesting questions posed by the appellants’ brief.
New trial.