The opinion
Walker, J.,
dissenting as to homestead tract. The case shows that the defendant G. 0. Edwards and his wife recovered a judgment in the Superior Court of Greene County on the first day of October, 1889, against B. J. Wilson, the intestate of the plaintiff, and the said judgment was docketed in the Superior Court of Pitt County on the same day. The plaintiff brought this proceeding for the purpose of selling the land of his intestate to pay debts, and in his petition he asks for the sale of the land known as the “homestead” tract, which is on the west side of the road and contains about 100 acres, and also of the land known as the “Brown” tract, lying on the east side of the road, it being the excess of the homestead and containing about 220 acres. An execution was issued to the Sheriff of Pitt County and levied on the said 320 acres of land. The homestead was set apart on October 14, 1889, and the excess, described in the pleadings as containing 220 acres and in the Sheriff’s deed as containing about 100 acres, was sold and bought by E. W. Brown, father of the defendant B. W. Brown, and others. The plaintiff alleges that this particular purchase was made by Brown at the nominal sum of $5 for the use and benefit of his uncle, B. J. Wilson, defendant in the execution, and upon the parol promise or trust that he would hold the same for his use and benefit, and upon the repayment of the sum disbursed by him that he would convey the land to his said uncle, the plaintiff’s intestate.
I fully concur, in the opinion of the Court, so far as it relates to this part of the case, but I do not concur in its decision as to the disposition of the fund arising out of the sale of the homestead tract. The defendant G. O. Edwards, who answers for himself and as administrator of his deceased wife, alleges that execution issued on his judgment from the Superior Court of Greene County to the Sheriff of Pitt County, and that the homestead was regularly *407 allotted; and the plaintiff in bis reply avers that no execution was- ever lawfully and properly issued from the Superior Court of Greene County, nor was the homestead ever regularly ox legally allotted under the same, and he therefore further avers that the Edwards’ judgment is barred by the statute of limitations, as the attempted allotment of the homestead was void and of no effect and did not therefore suspend the operation of the statute and prevent the bar. I think, though my brethren do not, that the allegation of the answer that execution had issued from Greene County is sufficiently met and denied by the reply. In the construction of a pleading for the purpose of determining its legal effect, its allegations shall be liberally construed with a view to substantial justice between the parties. The Code, section 260. We should remember that the subtle science of pleading heretofore in use is not merely relaxed but in a large measure abolished by The Code, and the rule of the common law that every pleading must be construed against the pleader has been reversed by the present system, and we must try to ascertain the intention of the pleader, however it may be expressed, and without putting a too strained and technical construction upon his words. Moore v. Edminston, 70 N. C., 510 ; Stokes v. Taylor, 104 N. C., 394 . As said by Clark, J., in the last-cited case, “when the defect is in the form rather than in the substance, the proper method of correction is not by demurrer, nor yet by excluding evidence at the trial, but by motion before the trial to make the averment more definite.” Buie v. Brown, 104 N. C., 335 ; Purcell v. Railroad, 108 N. C., 414 , 12 L. R. A., 113. The denial in this case was quite as sufficient to raise an issue as were the allegations and averments in Moore v. Edminston and the other cases cited. But it was not necessary that the plaintiff should reply to this allegation, as the new matter in the answer, not being a counter *408 claim, “is to be deemed controverted by the plaintiff as upon a direct denial or evidence, as the case may require” (The Code, section 268), the Court not having ordered the plaintiff to reply thereto, section 248. An issue having-been raised, how stood the proof ? It may be conceded that the recitals in the Sheriff’s deed are prima facie evidence not merely of the sale but also of the judgment and execution and of all facts necessary to be recited, in order to show his power and the correct execution of it with reference to the sale, and that this is so even when the party claiming under the deed is the plaintiff in the judgment. Rollins v. Henry, 78 N. C., 342 ; Curlee v. Smith, 91 N. C., 172 , and yet, the fact in this case is that, as to the homestead tract, there was no sale by the Sheriff, and therefore the recital could not be evidence of an allotment, nor even of the issuing of the execution under which it is alleged the allotment was made. The authorities do not fit the case. The recitals are prima facie evidence for the purpose of supporting the sale only, and there was no sale of this tract. To permit the execution to be evidence of the issuing of the execution in this case, would violate the well-settled rule that a party upon whom rests the burden of proving a fact must offer the best attainable evidence of it. In Rollins v. Henry, supra, the Court by Rodman, says: “The return to an execution is ordinarily the best evidence of a levy and sale under it. But when the execution has not been returned to the Clerk’s office, and it, with any return on it, has been lost or destroyed, and it is proved otherwise than from the recitals that there was a judgment and execution (italics mine), the recital in a Sheriff’s deed is prima facie evidence of the levy and sale, they being official acts of the Sheriff, even although the sale was not a recent one.” But assuming, 'for the sake of the argument, that the recitals were evidence of the issuing of the execution, they were *409 only prima facie evidence and open to rebuttal. I think there was sufficient testimony to be submitted to the jury for that purpose. There is this entry on the execution docket of the Superior Court of Pitt County: “Fi. fa. issued October, 1889. Plomestead appraised and set off and return made October 14, 1889.” It is not the duty of the Clerk of the Court of the county, whose Sheriff has received an execution issued from another county, to note on his docket the fact that the execution has issued. He is required to make an entry in regard to the homestead allotment when it is returned to him. Code, section 504. If there are any payments on the judgment, they are certified to him by the Clerk of the Court where the judgment was taken, and must be entered on his docket. The exception goes directly from the Clerk of the Court in which the judgment was rendered, to the Sheriff of the county where the defendant’s land is situated and where the judgment has been docketed, and the Clerk of the latter county has nothing to do with it. His judgment roll and docket are not required to show anything in connection with it, except the credits on the judgment and the return of the homestead allotment, and the latter is required, also, to be returned by the officer having the execution to the Clerk of the Court where the judgment was rendered. Acts 1887, p. 515. The entry therefore of the Clerk of Pitt Superior Court was some evidence that the execution had been issued from that Court, for, if it had been, his duty would have been to make just such an entry as he did make. Whether this was sufficient to rebut any evidence introduced- by the defendant was a question for the jury to decide, and not for the Judge. All such matters should be left to the triers of the facts appointed for the purpose of deciding such issues between the parties, and should not be decided as matters of law. The entry on the docket in Pitt County *410 was certainly as reliable as tbe recitals in tbe Sheriff's deed, and those recitals constituted all of tbe defendant’s evidence. I do not understand why tbe defendant did not introduce tbe original execution, if one ever issued from tbe Superior Court of G-reene County; if it bad been lost, be could have proved it bad been issuéd by tbe entries on tbe Clerk’s docket in Greene County or by tbe Sheriff who acted under it. Tbe fact that no such evidence was offered tended greatly to weaken tbe defendant’s case and to strengthen that of tbe plaintiff.
Douglas, concurs in the dissenting opinion.