Walker v. Story , 253 N.C. 59 ( 1960 )

116 S.E.2d 147 (1960) 253 N.C. 59

Nicholas A. WALKER
v.
Carl O. STORY.

No. 37.

Supreme Court of North Carolina.

September 21, 1960.

W. Y. Wilkins, Jr., Tryon, for plaintiff appellant.

B. T. Jones, Jr., Forest City, for defendant appellee.

RODMAN, Justice.

The action is in substance an action in ejectment with the burden on plaintiff to establish his superior title. Hayes v. Ricard, 244 N.C. 313, 93 S.E.2d 540.

To establish his ownership and right to possession plaintiff offered in evidence a deed dated 1 September 1926 from Nelson Hawkins and wife to Edward Mickler and Helen Ahern for the land in controversy. He also offered in evidence deeds which would vest in him such title, if any, as Mickler and Ahern acquired by the deed to them. Plaintiff offered no evidence of possession by him or his grantors nor did he offer any evidence tending to estop defendant.

Avery, J., said in Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142: "The general rule is that the burden is on the plaintiff in the trial of actions for the possession of land, as in the old action of ejectment, to either prove a title good against the whole world, or good against the defendant by estoppel." The rule so stated has been consistently applied. Norman v. Williams, 241 N.C. 732, 86 S.E.2d 593, and cases there cited. The rule also applies in an action in which the only relief sought is to remove cloud from title. Thomas v. Morris, 190 N.C. 244, 129 S.E. 623.

Plaintiff contends c. 469, S.L.1959, ratified 8 May 1959, which amends G.S. § 1-42, has the effect of relieving plaintiff of the burden of proof as declared in Mobley v. Griffin, supra, since he bases his claim of title on an instrument bearing date more than thirty years prior to the institution of the action.

Plaintiff's contention is refuted by sec. 3 of the Act which expressly declares that it shall not apply to pending litigation. This suit was begun and was pending more than five months before the Act relied upon took effect.

We are not now called upon to interpret the statute. The disposition we make of the appeal must not be understood as implying approval of plaintiff's interpretation of the statute.

Affirmed.