Opinion
June Term, 1824.
When a Superior Court is requested to instruct a jury on a point relative to which no testimony was offered, and declines to do so, it furnishes no ground for a new trial.
EJECTMENT to recover a tract of land formerly owned by one Charles Edmunds, under whom both plaintiff and defendant claimed.
On 29 November, 1817, Edmunds conveyed the lands in dispute, together with certain negroes, to Freeman, in trust for the benefit of the creditors of the grantor. The deed contained the usual power to the trustee to sell.
The defendant claimed title under a sheriff's deed for the land in dispute, dated 25 February, 1818, which was made by virtue of an execution against Charles Edmunds, issuing from NORTHAMPTON County court, December Term, 1817. The defendant exhibited, also, in evidence three executions against Charles Edmunds, issuing (6) September Term, 1817, of NORTHAMPTON County court, returned to the next December Term, with an indorsement of a levy on some of the negroes named in the deed of trust; alias writs of fi. fa. issued from December Term, 1817, and at March Term, 1818, were returned with the sheriff's indorsement that they were satisfied by a sale of the negroes, and that the sum remaining in his hands after satisfaction he had paid to the order of Freeman, who claimed it as trustee. The defendant contended that if Freeman had received any portion of the money arising from the sale of the land by the sheriff, that it amounted to a confirmation of the sale, and that he could not recover in this action, and requested that the jury should be so instructed, which the court declined, and the plaintiff had a verdict; new trial refused; judgment and appeal.
It cannot be perceived from the case that any evidence was given on the point relative to which the court was asked to instruct the jury. It was an abstract question on which the court could not, properly, give any opinion. Judgment must be
Affirmed.
Cited: S. v. McCurry, 63 N.C. 35.