McDonald v. McCrummen , 235 N.C. 550 ( 1952 )

70 S.E.2d 703 (1952) 235 N.C. 550

McDONALD
v.
McCRUMMEN et al.

No. 603.

Supreme Court of North Carolina.

May 7, 1952.

W. Clement Barrett, H. F. Seawell, Jr., Carthage, for plaintiff appellant. Spence & Boyette, Carthage, for defendants appellees.

WINBORNE, Justice.

While appellant, the plaintiff, in brief filed on this appeal, states six questions as presented, the only assignment of error is based on exception to the ruling of the trial court in allowing motion for, and entering, judgment as of nonsuit.

In considering such motion, the evidence offered by plaintiff is to be taken in the light most favorable to him. When so considered, we are constrained to hold that the evidence offered by plaintiff on the trial in Superior Court, as shown in the record on this appeal, fails to make out a prima facie showing of title in him.

When in an action for the recovery of land, defendant denies plaintiff's title, an issue of fact arises as to the title of plaintiff,—the burden 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; Locklear v. Oxendine, 233 N.C. 710, 65 S.E.2d 673; Williams v. Robertson, N.C., 70 S.E.2d 692.

In such action the general rule is that plaintiff must rely upon the strength of his own title, and not upon the weakness of that of defendant. Love v. Gates, 20 N.C. 498; Newlin v. Osborne, 47 N.C. 163; Spivey v. Jones, 82 N.C. 179; Keen v. Parker, 217 N.C. 378, 8 S.E.2d 209; Stewart v. Cary, 220 N.C. 214, 17 S.E.2d 29, 144 A.L. R. 1287; Williams v. Robertson, N.C., 70 S.E.2d 692; Murphy v. Smith, N.C., 70 S.E.2d 697.

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. See also, among many others, these cases: Prevatt v. Harrelson, 132 N.C. 250, 43 S.E. 800; Moore v. Miller, 179 N.C. 396, 102 S.E. 627; Smith v. Benson, supra; Locklear v. Oxendine, supra; Williams v. Robertson, supra.

In the Mobley case [104 N.C. 112, 10 S.E. 142], 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." These, in so far as here pertinent, are:

"(1) He may offer a connected chain of title, or a grant direct from the state to himself. * * *

"(3) He may show title out of the state by offering a grant to a stranger without connecting himself with it, and then offer proof of continuous possession under color of title in himself and those under whom he claims for seven years before the action was brought."

And in this connection, it is appropriate to note that in all actions involving title to real property, title is conclusively presumed to be out of the State unless it (the State) be a party to the action, G.S. § 1-36, but "there is no presumption in favor of one party or the other, nor is a litigant seeking to recover land otherwise relieved of the burden of showing title in himself." Moore v. Miller, supra [179 N.C. 396, 102 S.E. 628]; Smith v. Benson, supra; Locklear v. Oxendine, supra; Williams v. Robertson, supra.

In the light of these rules, since the evidence in the case in hand discloses that the land in controversy is unoccupied woodland, plaintiff apparently has undertaken to make out title by showing State grant for the land, and a connected chain of title from the State's grantee to the plaintiff. But the trouble with this effort is that it does not connect. The fact that land was granted to a person named Aaron Murchison, and years later there is a deed from another named O. B. Murchison, purporting to convey the same land as that to which the grant relates, is not evidence from which it may be found that O. B. Murchison had acquired the title of Aaron Murchison. It may be that O. B. Murchison is the heir, or an heir of the first, and as such could maintain an action against a third party to recover the land, Locklear v. Oxendine, supra, but the testimony of plaintiff is that "I do not know what kin O. B. Murchison was to A. A. Murchison,— they were some of my own people." Titles to land may not rest in so thin veil of uncertainty.

Manifestly, this action has been prosecuted under misapprehension of applicable principles. The rules of evidence as to proof of matters of pedigree within the family are liberal. See Stansbury on North Carolina Evidence, Sec. 149, and cases cited. If proof be available plaintiff may yet make out a case of prima facie title in a new action. G.S. § 1-25. Craver v. Spaugh, 227 N.C. 129, 41 S.E.2d 82; Locklear v. Oxendine, supra.

But on this record, the judgment of nonsuit is affirmed.