Seawell v. Boone's Mill Fishing Club, Inc. ( 1959 )

106 S.E.2d 486 (1959) 249 N.C. 402

Dr. H. M. SEAWELL and wife, Constance T. Seawell,
v.
BOONE'S MILL FISHING CLUB, Incorporated.

No. 175.

Supreme Court of North Carolina.

January 14, 1959.

Vernon D. Strickland, Rich Square, for plaintiffs appellants.

George C. Green, Weldon, Eric Norfleet, Jackson, for defendant appellee.

WINBORNE, Chief Justice.

The principal assignment of error presented on this appeal is based upon exception to the ruling of the trial court in granting defendant's motion for judgment as of nonsuit entered when plaintiffs rested their case.

In this connection, taking the evidence offered by the plaintiffs in the light most favorable to them, this Court is of opinion, and holds, that there is total failure of proof as to location of land sought to be recovered by plaintiffs as described in the complaint. And hence the nonsuit was properly granted.

When in an action for the recovery of land, as in the present case, defendant denies plaintiffs' title and defendant's trespass, nothing else appearing, issues of fact arise both as to the title of plaintiffs and as to trespass of defendant,—the burden as to each being on plaintiffs. Williams v. Robertson, 235 N.C. 478, 70 S.E.2d 692; 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. See also West Virginia Pulp & Paper Co. v. Richmond Cedar Works, 239 N.C. 627, 80 S.E.2d 665; Teel v. Johnson, 228 N.C. 155, 44 S.E.2d 727.

In such action plaintiff must rely upon the strength of his own title. This requirement may be met in various methods which are specifically set forth in Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142.

In the present action plaintiff undertakes to connect himself with a common source of title, and to show in himself a better title from that source—(the sixth method set out in the Mobley case).

However, as stated in Skipper v. Yow, 238 N.C. 659, 78 S.E.2d 600, 602, opinion by Barnhill, J., later C. J.: "In an ejectment action a plaintiff must offer evidence which fits the description contained in his deeds to the land claimed. That is, he must show that the very deeds upon which he relies convey, or the descriptions therein contained embrace within their bounds, the identical land in controversy. If one or more of his deeds convey less than the whole, he must show that the land conveyed thereby lies within the bounds, and forms a part, of the locus in quo. As to the identity of the land conveyed, a deed seldom, if ever, proves itself. Fitting the description contained in the deed to the land in controversy, or vice versa, must be effected by evidence dehors the record," citing Smith v. Fite, 92 N.C. 319; Locklear v. Oxendine, supra; Linder v. Horne, 237 N.C. 129, 74 S.E.2d 227; Powell v. Mills, 237 N.C. 582, 75 S.E.2d 759; North Carolina Self Help Corp. v. Brinkley, 215 N.C. 615, 2 S.E.2d 889.

Indeed in Smith v. Fite, supra, this Court, through Smith, C. J., declared that "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 efficacy to his possession." And in Locklear v. Oxendine, supra [233 N.C. 710, 65 S.E.2d 677], this Court adds this comment, "in other words, the plaintiff 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." And "the general rule as to this is that in order to locate a boundary, the lines should be run with the calls in the regular order from a known beginning, and the test of reversing in the progress of the survey should be resorted to only when the terminus of a call cannot be ascertained by running forward, but can be fixed with certainty by running reversely the next succeeding line," citing cases.

Hence other assignments of error require no express consideration, and the judgment from which appeal is taken is

Affirmed.