Cothran v. Akers Motor Lines, Inc.

Annotate this Case

127 S.E.2d 578 (1962)

257 N.C. 782

Frank H. COTHRAN, Jr. v. AKERS MOTOR LINES, INC.

No. 253.

Supreme Court of North Carolina.

October 17, 1962.

*579 Richard M. Welling, Charlotte, for plaintiff appellant.

L. B. Hollowell and Helms, Mulliss, McMillan & Johnston, by Fred B. Helms, Charlotte, for defendant appellee.

RODMAN, Justice.

"Ejectment being a possessory action, it lies only where the lessor of the plaintiff could rightfully enter, and the title to support a recovery must therefore be inseparably connected with the right of possession, and must have this ingredient at least. The title of the defendant is entirely out of view. It is an old maxim that a man must recover by the strength of his own title in ejectment, not in consequence of any weakness in that of his adversary. Every plaintiff in ejectment, says Lord Mansfield, in Atkins v. Hord, must show a right of possession, as well as a right of property * * *." That was the argument General Davie made in 1791 in the case of Strudwick v. Shaw, 2 N.C. 5. The court accepted Davie's statement of the law and nonsuited plaintiff.

Higgins, J., said in Hayes v. Ricard, 244 N.C. 313, 93 S.E.2d 540, decided in 1956: "In this, as in all ejectment cases, the plaintiffs must recover on the strength of their own title."

In the period intervening between the decisions in Strudwick v. Shaw and Hayes v. Ricard there has never been a departure from the rule that plaintiff, when his title is denied, must suffer a nonsuit if he fails to show prima facie his good title.

Avery, J., outlined in Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142, the various ways by which a party might prove title. That case was decided in 1889. Because of its clarity and simplicity, it has been cited more than 100 times. See Shepard's Citations. What was then said accurately summarizes the law today, Tripp v. Keais, 255 N.C. 404, 121 S.E.2d 596; Taylor v. Scott, 255 N.C. 484, 122 S.E.2d 57; except it is not now necessary to prove the sovereign has parted with its title when not a party to the action. G.S. § 1-36.

Plaintiff made no effort to show title by estoppel or that he and defendant claimed from a common source. He introduced a *580 deed to himself dated in May 1951. The description in that deed is identical with the description in the complaint. It begins in the center of the Thrift Belt Road and proceeds by specific course and distance to embrace the area described in the complaint.

The deed is color of title; but color of title is not sufficient to make a prima facie case of title. The color must be strengthened by possession, which must be open, notorious, and adverse for a period of seven years. G.S. § 1-38.

It was said in Grant v. Winborne, 3 N.C. 56, decided in 1798: "[I]t was the intent of the act (statute of limitations) that where a man settled upon and improved lands upon the supposition that they were his own, and continued in the occupation for seven years, he should not be subject to be turned out of possession. Hence arises the necessity for a color of title; for if he has no such color or pretense of title, he cannot suppose the lands are his own, and he settles upon them in his own wrong. The law has fixed the term of seven years both for the benefit of the prior patentee and the settler, that the latter might not be disturbed after that time, and in that time the prior patentee might obtain notice of the adverse claim and assert his own right. Hence arises the necessity that the possession should be notorious and public, and, in order to make it so, that the adverse claimant should either possess it in person or by his slaves, servants or tenants * * *." The rule requiring physical possession so notorious as to put the true owner on notice of the adverse claim in order to mature claimant's title is as well settled as the rule requiring plaintiff to establish his title. Andrews v. Mulford, 2 N.C. 311; Simpson v. Blount, 14 N.C. 34; Williams v. Buchanan, 23 N.C. 535; Gilchrist v. McLaughlin, 29 N.C. 310; Loftin v. Cobb, 46 N.C. 406; Gudger v. Hensley, 82 N.C. 481; Bland v. Beasley, 145 N.C. 168, 58 S.E. 993; Locklear v. Savage, 159 N.C. 236, 74 S.E. 347; Holmes v. Carr, 172 N.C. 213, 90 S.E. 152; Nichols v. York, 219 N.C. 262, 13 S.E.2d 565; Brown v. Hurley, 243 N.C. 138, 90 S.E.2d 324.

The only evidence in any way indicative of possession comes from plaintiff. On both direct and cross-examination he refers to the land in controversy as "my land," but this is no evidence of possession. It was a mere means of identifying the land in controversy and plaintiff's assertion of title.

The strongest statements to show adverse possession appear on cross-examination. Plaintiff there testified: "My property on the southerly side of Paw Creek is vacant. On the northerly side of Paw Creek I have a tenant house there, four rooms and another building with two rooms, a deep well, the works. South of Paw Creek there are no improvements on my property. That's where I was going to build me a house, nothing over there." He gave no testimony tending to show that either of the buildings to which he referred were or had been occupied since he purchased in 1951. He also testified: "Since the sewer line has been there I have not been out there much, I've been so sick of it. When I was figuring on building a house out there I visited very often. I go out there probably at least once a month. Sometimes I get out and walk over the property." He does not tell what he did when visiting the property before the sewer line was constructed nor how often he went there.

Appellee's brief states the question involved on the appeal and pointedly asks if plaintiff, when his title is denied, can maintain his action without proof of ownership. Three pages of appellee's brief are used to show that this question must be answered in the negative. It cites a number of cases, including some of those cited in this opinion. Notwithstanding appellee's position that plaintiff is not entitled to recover unless and until he has shown that he is the owner of the land in controversy, appellant, in his opening statement of facts, says: "The plaintiff since 1951 has owned *581 in fee simple a tract of land on the easterly side of Little Rock Road in Berryhill Township, Mecklenburg County, North Carolina." He makes no argument that there is evidence from which a jury could find plaintiff owned the land described in the complaint.

Since plaintiff has failed to make a prima facie showing of title to the land in controversy, it is not necessary to discuss the other questions debated in the briefs.

Affirmed.