Meeker v. Wheeler , 236 N.C. 172 ( 1952 )

72 S.E.2d 214 (1952) 236 N.C. 172

MEEKER et ux.
v.
WHEELER.

No. 105.

Supreme Court of North Carolina.

September 17, 1952.

Carl W. Greene, Asheville, for plaintiffs appellees.

Sanford W. Brown, William V. Burrow, Asheville, for defendant appellant.

WINBORNE, Justice.

Defendant assigns as error, and properly so, (1) the denial of her motions, aptly made, for judgment as of nonsuit, (2) the refusal of her request for peremptory instruction in her favor on the issue submitted to the jury, and (3) the giving of peremptory instruction in favor of plaintiffs. These are all based upon the theory that plaintiffs have failed to make out prima facie case of title to the land sought to be recovered.

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 title of plaintiff and as to trespass by defendant,—the burden of proof 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.

In such action plaintiff must rely upon the strength of his own title. This requirement may be met by various methods which are specifically set forth in Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142, and applied in numerous cases,—some of the late ones being Locklear v. Oxendine, 233 N.C. 710, 65 S.E.2d 673; McDonald v. McCrummen, 235 N.C. 550, 70 S.E.2d 703.

In the Mobley case it is said that "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 were offered. This prima facie showing of title may be made by either of several methods."

The 6th rule is pertinent to case in hand, that is, that plaintiffs may connect the defendant with a common source of title, and show in themselves a better title from that source. See cases there cited, and of later cases see Stewart v. Cary, 220 N.C. 214, 17 S.E.2d 29, 144 A.L.R. 1287.

It is apparent that plaintiffs here have undertaken to bring the present case within this rule. They offer in evidence admission by defendant that she and others obtained deed from plaintiffs, and then they offer a deed to themselves from a trustee, purporting to act under power of sale contained in a deed of trust, which they say was given by defendant and others to secure indebtedness to plaintiffs for balance of purchase of the land. But neither the deed of trust nor any record of it is offered in evidence. This creates a break in their chain of title.

While there is a presumption of law in favor of the regularity in the exercise of the power of sale in a mortgage or deed of trust, Edwards v. Hair, 215 N.C. 662, 2 S.E.2d 859, and cases cited, there must first be evidence of a deed of trust in which power of sale is given. Mere recital in the trustee's deed purporting to be pursuant to sale under power of sale given in a recorded deed of trust, does not span the hiatus in the chain of title created by failure to offer in evidence the registered deed of trust or a record of it.

Manifestly this action has been prosecuted under misapprehension of applicable principles of law. If proof be available plaintiffs may yet make out a case of prima facie title in a new action. See last paragraph in McDonald v. McCrummen, supra.

But on this record, motions for nonsuit should have been allowed. Hence the judgment below is reversed.