Garris v. Butler

189 S.E.2d 809 (1972)

L. E. GARRIS and wife, Ethel Garris v. G. L. BUTLER and wife, Willie Mae Butler.

No. 7212DC367.

Court of Appeals of North Carolina.

July 12, 1972.

*810 No counsel for plaintiff, L. E. Garris, appellee.

Arthur L. Lane, Fayetteville, for defendant appellants.

HEDRICK, Judge.

The defendants contend the court erred in denying their timely motion for involuntary dismissal. Defendants' motion for an involuntary dismissal in an action tried by the Court without a jury challenges the sufficiency of the plaintiffs' evidence to establish the right to relief. Wells v. Sturdivant Life Insurance Co., 10 N.C.App. 584, 179 S.E.2d 806 (1971). In an action to remove cloud from title, the burden is upon plaintiffs to prove title good against the whole world or against the defendants by estoppel. Walker v. Story, 253 N.C. 59, 116 S.E.2d 147 (1960). "The plaintiff may safely rest his case upon showing such facts and such evidences of title as would establish his right to recover, if no further testimony was offered. This prima facie showing of title may be made by either of several methods." Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142 (1889). In this action plaintiffs attempted to establish their title to the land in controversy by adverse possession under known and visible boundaries for more than 20 years. In order for adverse possession to ripen title in the possessor, the possession must be actual, open, hostile, exclusive, and continuous. 1 Strong, N.C. Index 2d, Adverse Possession, § 1, p. 54. Whereas here, a grantee goes into possession of the tract of land conveyed to him *811 and also a contiguous tract not included in the conveyance under the mistaken belief that the contiguous tract was included within the description in his deed, no act of such grantee, however exclusive, open and notorious will constitute adverse possession of the contiguous tract so long as he thinks his deed covers the contiguous tract, since there is no intent on his part to claim adverse to the true owner. Price v. Whisnant, 236 N.C. 381, 72 S.E.2d 851 (1952). The evidence clearly reveals plaintiff, Garris, first assumed possession of the land in controversy in 1948 under the mistaken belief that his deed to the Beatty land embraced the disputed area, and that he did not discover his mistake until 1966 when he sold 3 acres of Beatty land to the defendants. No act of the plaintiff prior to the time he discovered that the land in controversy was not included in the Beatty land will be considered adverse, regardless of how exclusive, open and notorious it might have been. Price v. Whisnant, supra; Gibson v. Dudley, 233 N.C. 255, 63 S.E.2d 630 (1951). Therefore, because the plaintiff's possession from 1948 to 1966 was not adverse, we need not consider what use, if any, the plaintiff made of the land in controversy after he learned it was not a part of the Beatty land since this covered a period of not more than six years.

We hold the plaintiff failed to offer sufficient evidence to show title in himself to the land in controversy by adverse possession for 20 years, and the court erred in not allowing the defendant's motion of involuntary dismissal. However, this does not have the effect of adjudicating title to the land in controversy in the defendants. Taylor v. Scott and Lewis v. Scott, 255 N.C. 484, 122 S.E.2d 57 (1961). The judgment appealed from is

Reversed.

BROCK and MORRIS, JJ., concur.