Williams v. Robertson

70 S.E.2d 692 (1952)

235 N.C. 478

WILLIAMS et al. v. ROBERTSON et al.

No. 165.

Supreme Court of North Carolina.

April 30, 1952.

*695 Kerr & Kerr and James D. Gilliland, all of Warrenton, for plaintiff appellant.

Banzet & Banzet, Warrenton, for defendants appellees.

WINBORNE, Justice.

The sole assignment of error brought forward and debated in brief of plaintiff appellant, is based upon exception to the judgment as of nonsuit entered, upon renewal of motion, at close of all the evidence. G.S. § 1-183.

In considering such motion, "the defendant's evidence, unless favorable to the plaintiff, is not to be taken into consideration, except when not in conflict with plaintiff's evidence, it may be used to explain or make clear that which has been offered by the plaintiff", Stacy, C. J., in Harrison v. RR, 194 N.C. 656, 140 S.E. 598, 600. See also Rice v. City of Lumberton, ante, 235 N.C. 227, 69 S.E.2d 543, where the authorities are assembled.

Therefore, taking the evidence offered by the plaintiff, and so much of defendant's evidence as is favorable to the plaintiff, or tends to explain and make clear that which has been offered by the plaintiff, in the light most favorable to plaintiff, this Court is of opinion, and holds that there is sufficient evidence to take the case to the jury on the issue of title asserted by plaintiff. Indeed, the record is not clear as to the theory on which the nonsuit was granted.

When in an action for the recovery of land and for trespass thereon, defendant denies plaintiff's title and defendant's trespass, nothing else appearing, issues of fact arise both as to the title of plaintiff and as to trespass by defendant,the burden as to each being on plaintiff. Federal Farm Mortgage Corp. v. Barco, 218 N.C. 154, 10 S.E.2d 642; Smith v. Benson, 227 N.C. 56, 40 S.E.2d 451; Locklear v. Oxendine, 233 N.C. 710, 65 S.E.2d 673.

In such action, plaintiff must rely upon the strength of his own title. This *696 requirement may be met by various methods which are specifically set forth in Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142; see also Prevatt v. Harrelson, 132 N.C. 250, 43 S.E. 800; Moore v. Miller, 179 N.C. 396, 102 S.E. 627, 628; Smith v. Benson, supra, and many others, including Locklear v. Oxendine, supra.

Moreover, in all actions involving title to real property, title is conclusively presumed to be out of the State unless it be a party to the action, G.S. § 1-36, but "there is no presumption in favor of one party or the other, nor is a litigant seeking to recover land otherwise relieved of the burden of showing title in himself." Moore v. Miller, supra; Smith v. Benson, supra; Locklear v. Oxendine, supra.

In the light of this presumption, apparently, plaintiff in the present action assuming the burden of proof, has elected to show title in himself by adverse possession by those under whom he claims title, under known and visible lines and boundaries for twenty years, without color of title, which is one of the methods by which title may be shown. See Locklear v. Oxendine, supra.

And, the principle prevails in this State that several successive possessions may be tacked for the purpose of showing a continuous adverse possession where there is privity of estate or connection of title between several occupants. Ramsey v. Ramsey, 224 N.C. 110, 29 S.E.2d 340; Locklear v. Oxendine, supra.

In this connection, it may be noted that a parol partition of land is a contract within the purview of the statute of frauds, G.S. § 22-2, and is not binding. And "in order for tenants in common to perfect title to the respective shares of land allotted to them by parol, it is necessary for them to go into possession of their respective shares in accordance with the agreement and to hold possession thereof under known and visible boundaries, consisting of lines plainly marked on the ground at the time of the partition, and to continue in possession openly, notoriously and adversely for twenty years", as stated by Denny, J., in Duckett v. Harrison, ante, 235 N.C. 145, 69 S.E.2d 176.

Moreover, as this Court declared in Winstead v. Woolard, 223 N.C. 814, 28 S.E.2d 507, it is a well settled and long established principle of law in this State that the possession of one tenant in common is in law the possession of all his cotenants unless and until there has been an actual ouster or a sole adverse possession of twenty years, receiving the rents and profits and claiming the land as his own from which actual ouster may be presumed. See also Duckett v. Harrison, supra.

Indeed, adverse possession, even under color of title, will not ripen title as against a tenant in common short of twenty years. Duckett v. Harrison, supra, and cases cited.

And, in pursuing the method of proving title by adverse possession, under color of title, a deed offered as color of title is such only for the land designated and described in it. Davidson v. Arledge, 88 N.C. 326; Smith v. Fite, 92 N.C. 319; Barker v. RR, 125 N.C. 596, 34 S.E. 701; Johnston v. Case, 131 N.C. 491, 42 S.E. 957; Smith v. Benson, supra.

In Smith v. Fite, supra, this headnote epitomized the opinion of the Court, written by Smith, C. J.: "Where a party introduces a deed in evidence, which he intends to be used as color of title, he must prove that its boundaries cover the land in dispute, to give legal efficacy to his possession." In other words, the party must not only offer the deed upon which he relies, he must by proof fit the description in the deed to the land it covers,in accordance with appropriate law relating to course and distance, and natural objects called for as the case may be. Locklear v. Oxendine, supra.

Furthermore, "when the relation of landlord and tenant has existed, the possession of the tenant is deemed the possession of the landlord, until the expiration of twenty years from the termination of the tenancy * * *." See G.S. § 1-43; also Lofton v. Barber, 226 N.C. 481, 39 S.E.2d 263.

*697 Finally, it is noted that while there are numerous assignments of error based upon exceptions by plaintiff relating to matters of evidence, no reason or argument is stated, or authority cited in support of them. Hence for purposes of this appeal, they are deemed abandoned. Rule 28 of Rules of Practice in the Supreme Court, 221 N.C. 544, at pages 562-563. Therefore, no decision is made in respect to any of the questions thereby raised.

We refrain, also, from a discussion of the evidence, as there must be another trial. And the judgment of nonsuit entered below is reversed.