Price v. Whisnant

62 S.E.2d 56 (1950)

232 N.C. 653

PRICE v. WHISNANT et al.

No. 315.

Supreme Court of North Carolina.

November 22, 1950.

*58 Folger Townsend and Fate J. Beal, Lenoir, for plaintiff.

B. F. Williams and Hal B. Adams, Lenoir, for defendants.

DENNY, Justice.

The defendants assign as error the admission of plaintiff's testimony, over objection, to the effect that the defendant A. H. McRary, who is now non compos mentis, sent for him "quite a few years ago" to meet him at a designated place; that he did so and McRary had Charles Barlow (now deceased), the County Surveyor, to run certain lines, one of which is now in dispute.

We think this evidence coming from the plaintiff was inadmissible. It was evidence concerning a transaction between the witness and the defendant, who is non compos mentis. Such testimony is inhibited by the provisions of G.S. § 8-51. This statute expressly provides that "a party or a person interested in the event * * * shall not be examined as a witness in his own behalf or interest * * * against the executor, administrator or survivor of a deceased person, or the committee of a lunatic * * * concerning a personal transaction or communication between the witness and the deceased person or lunatic * * *."

W. P. Price, the witness is (a) a party to the action, (b) he is interested in the event of the action, and (c) the defendant A. H. McRary at the time of the trial below had been adjudged non compos mentis, and by reason of this fact was incompetent to testify in his own behalf; therefore, the plaintiff was likewise incompetent to testify in his own behalf concerning any transaction or communication between himself and this defendant. Perry v. First Citizens Nat. Bank & Trust Co., 226 N.C. 667, 40 S.E.2d 116; Wingler v. Miller, 223 N.C. 15, 25 S.E.2d 160; Cartwright v. Coppersmith, 222 N.C. 573, 24 S.E.2d 246; *59 Wilder v. Medlin, 215 N.C. 542, 2 S.E.2d 549; Poole v. Russell, 197 N.C. 246, 148 S.E. 242. Cf. Turlington v. Neighbors, 222 N.C. 694, 24 S.E.2d 648 and Abernathy v. Skidmore, 190 N.C. 66, 128 S.E. 475. Even so, the witness was permitted to testify thereafter without objection as to where the defendant had the County Surveyor run the disputed line and to testify as to the point where such line began, the bearing and distance thereof; that the line was marked with an axe and that the plaintiff and the defendant A. H. McRary were with the surveyor when the line was run.

The admission of this evidence without objection, rendered harmless the previously admitted evidence of similar import over objection. State v. Summerlin, 232 N.C. 333, 60 S.E.2d 322; State v. King, 226 N.C. 241, 37 S.E.2d 684; State v. Godwin, 224 N.C. 846, 32 S.E.2d 609. This assignment of error will not be sustained.

The appellants except and assign as error two excerpts from the charge, as follows:

"When the plaintiff has shown a prima facie title, it behooves the defendant to show a superior title. The burden of proof upon this issue is upon the plaintiff. The plaintiff alleges ownership and right to possession and the defendant denies it. Ordinarily the burden of proof never shifts from the plaintiff, but our courts have said that when a plaintiff shows prima facie title, that then the burden of going forward with the evidence shifts to the defendant, and he must then rebut the evidence of the plaintiff. Showing prima facie title does not shift the burden of proof upon this issue, but imposes upon the defendant the burden of going forward with evidence." Exception No. 39.

"Now, if you are satisfied from the evidence and by its greater weight that the plaintiff received a quitclaim deed which described the property in question, and that he lived on a portion of the property described in the quitclaim deed, and actually occupied a portion of it, then the court instructs you that in that event that the actual occupancy of the plaintiff in such case would be deemed in our law to extend to the outermost limits of the description contained in the quitclaim deed, nothing else appearing, and it would then be necessary for the defendant to satisfy you from the evidence that he has held it adversely for the required statutory period of time. Or, the defendant would have to satisfy you that he has a superior title to the property." Exception No. 41.

The assignment of error based on the 39th exception challenges the correctness of the court's instruction as to the effect of a prima facie case. We think the instruction is inexact and may have misled the jury. When a plaintiff makes out a prima facie case, it simply means he has offered sufficient evidence in support of his allegations to warrant the submission of his case to the jury, and the jury may, but is not compelled to find for him. However, in such cases, the burden of going forward with the evidence shifts to the defendant, and if the defendant elects to offer no evidence he merely assumes the risk of an adverse verdict. Precythe v. Atlantic Coast Line R., 230 N.C. 195, 52 S.E.2d 360; Vance v. Guy, 224 N.C. 607, 31 S.E.2d 766; Star Mfg. Co. v. Atlantic Coast Line R. Co., 222 N.C. 330, 23 S.E.2d 32; McDaniel v. Atlantic Coast Line Ry., 190 N.C. 474, 130 S.E. 208; Speas v. Merchants Bank, 188 N.C. 524, 125 S.E. 398. "A prima facie showing merely takes the case to the jury, and upon it alone they may decide with the actor or they may decide against him, and whether the defendant shall go forward with evidence or not is always a question for him to determine." Hunt v. Eure, 189 N.C. 482, 127 S.E. 593, 596.

Likewise, the assignment of error bottomed on the 41st exception challenges the correctness of the charge on constructive possession, when considered in light of the facts disclosed on the record.

It is settled law with us that where one enters into possession of land under a colorable title which describes the land by definite metes and bounds, and occupies and holds a portion of the land within such description, asserting ownership of the whole, by construction of law his possession is extended to the outer bounds of his *60 deed, and possession so held adversely for seven years ripens his title to all the land embraced in the description in his deed which is not adversely held by another. Vance v. Guy, 223 N.C. 409, 27 S.E.2d 117; Ware v. Knight, 199 N.C. 251, 154 S.E. 35; Ray v. Anders, 164 N.C. 311, 80 S.E. 403; Simmons v. Defiance Box Co., 153 N.C. 257, 69 S.E. 146; Haddock v. Leary, 148 N.C. 378, 62 S.E. 426.

In this case, however, the plaintiff went into possession of the 175 acres of land described in the complaint, except the 64.4 acre tract now in dispute, under a warranty deed executed by T. H. Broyhill in 1913. No one disputes the plaintiff's title to or the right of occupancy of the approximately 110 acres of land conveyed to him by Broyhill, which occupancy has continued uninterrupted and unchallenged to the present time.

Since the plaintiff owned the tract of land occupied by him at the time he obtained the quitclaim deed, he did not enter upon his own land thereunder, and his continued occupation thereof would not, by construction of law, extend his possession to the outermost boundaries of the description in the quitclaim deed. The quitclaim deed was color of title only to the 64.4 acres of land not contained within the boundaries of the Broyhill deed. Therefore, in order to establish title to the disputed tract of land, the plaintiff must do so under the rule of pedis possessio, or show entry upon the disputed tract under his quitclaim deed and actual occupancy of a portion thereof adversely, in order to extend the force and effect of his possession to the outer borders of the disputed lands contained within the description of the quitclaim deed.

In order "to ripen a colorable title into a good title, there must be such possession and acts of dominion by the colorable claimant as will make him liable to an action of ejectment. This is said to be the test." Lewis v. Covington, 130 N.C. 541, 41 S.E. 677, 678. If the plaintiff had had no title to the 175 acres except under his quitclaim deed, and he had entered thereunder, the exception to the charge with respect to constructive possession by operation of law would be without merit; but he had a good title to the part of the boundary of which he had the actual possession, Lewis v. Covington, supra; Elliott v. Roanoke R. R. & Lumber Co., 169 N.C. 394, 86 S.E. 506, consequently such possession, by construction of law, did not extend to the outer boundaries of the quitclaim deed. At no time since 1913 could an action in ejectment have been maintained against the plaintiff with respect to his occupancy of the 110 acres purchased from Broyhill.

The defendants, for the reasons stated, are entitled to a new trial, and it is so ordered.

New trial.