Federal Farm Mortgage Corp. v. Barco , 218 N.C. 154 ( 1940 )

'WiNBORNE, J.

Upon tbe record in this appeal tbe exception to tbe refusal of tbe court to allow defendants’ motion for judgment as in case of nonsuit, assigned as error, is well taken.

Tbe plaintiff, having elected to bring tbis action for tbe recovery of land, tbat is, an action in ejectment, alleges tbat it is tbe owner of certain land and tbat defendants are in wrongful possession thereof and wrongfully and unlawfully withhold same from plaintiff. Defendants deny each of these allegations. Upon such denial, nothing else appearing, issues of fact arise both as to tbe title of plaintiff and possession by defendants — the burden of proof as to each being on tbe plaintiff. On tbe trial below no issue was submitted, and no evidence was offered as to possession by defendants.

Plaintiff, however, contends tbat by their further answer defendants assert ownership of tbe land to which plaintiff alleges and claims title; tbat under tbe authorities tbis is tantamount to an admission of possession; and tbat, hence, as a matter of law, no issue as to possession by defendants is raised on tbe pleadings as a whole. Without going into a discussion of tbe legal proposition arising upon such contention, we are of opinion tbat tbe description of tbe land as set forth in tbe complaint and tbat of tbat referred to in tbe further answer are not sufficiently identical to admit of bolding as a matter of law tbat tbe lands are tbe same. It is noted tbat in tbe complaint tbe land is in part described as being “located on tbe N. C. State Highway No. 34, two miles northwest of Elizabeth City,” while tbe lands to which tbe further answer relates is referred to as “situated on State Highway 17, near Elizabeth City.” Therefore, tbe factual situation in tbe present case does not admit of tbe application of tbe principle of law advanced by plaintiff, nor of tbe legal conclusion for which plaintiff contends.

Tbe judgment below is

Beversed.