Huneycutt v. . Brooks , 116 N.C. 788 ( 1895 )

This is a proceeding commenced in the Superior Court of Stanly County before the clerk for partition of the lands mentioned in the complaint. Plaintiffs allege that they are tenants in common with defendants in said lands. The defendants answer and deny that plaintiffs are the owners of the lands mentioned in their complaint, and plead "non tenant insimul" (sole seizin in themselves), which is the "general issue" in a proceeding for partition. Purvis v. Wilson, 50 N.C. 22. This makes the issue where the plaintiff claims to be the owner of land and the defendant denies that he is the owner. In effect it becomes an action of ejectment and the defendant is required to give bond for cost and damage before he can answer as in an action of ejectment under section 237 of The Code. Cooper v. Warlick,109 N.C. 672; Vaughan v. Vincent, 88 N.C. 116.

This being so, the burden of proof is on the plaintiff, the test being this: Suppose no evidence should be introduced, who would be entitled to recover? 1 Greenleaf Ev. (14 Ed.), pp. 104, 105 and note B; (793) Clapp v. Brougham, 9 Cowen N. Y., 530; 17 Am. Eng. Enc., 747; Bailey's Onus Probandi, 113; Abbott's Trial Ev., 723. Then suppose no evidence had been introduced in this case, plaintiffs alleging seizin in themselves and defendants denying it, and nothing appearing in the pleadings to estop defendants (as claiming under or through the same person) from denying plaintiffs' title, who would have been entitled to recover? The simple statement of this proposition, it seems to us, shows that defendants would be entitled to an instruction from the court to the jury, directing them to return a verdict for defendants. And we are of the opinion that the court erred when it held that the burden was on defendants. If defendants had declined to introduce evidence and the court had instructed the jury to return a verdict for plaintiffs — which the court would have done if it had followed the logic of its position that the burden was on the defendants — defendants would have been entitled to a new trial.

But defendants' plea of sole seizin did not only throw the burden upon plaintiffs to open the case, but also to prove their title, as in ejectment. The plaintiffs had to recover, if at all, upon the strength of their own title. It was not necessary that defendants should do anything until plaintiffs did this. After defendants had offered three deeds running back to 1845 and a long continued possession, which we do not deem it necessary to discuss in this appeal, the plaintiffs did introduce evidence, but in our opinion it fell far short of making out their case.

They first introduced the will of David Brooks, probated at August Term, 1842, which was in substance to his widow Polly Brooks, during her widowhood, and then to his children. And it was shown that Polly

Brooks never married again and died in 1882 or 1883. But it (794) was not shown that Polly Brooks or any of the plaintiffs had been in possession of this land (the sixty-four and a half acres of which defendants claim to be sole seized) for thirty-five or forty years; in fact plaintiffs failed to prove possession in Polly or themselves of any of the lands mentioned in the complaint. The will of David Brooks does not establish title in plaintiffs, by their showing as they did that they were the children and heirs-at-law of the said David. This will, without proving that plaintiffs or their mother Polly had held possession under it, proved no more than it would have proved in 1842 when it was probated. Suppose then that defendants had been in possession, and plaintiffs and their mother Polly had brought their action of ejectment against them, and offered this will in evidence and stopped; could it be contended that plaintiffs had made out their title and were entitled to recover? This proposition must be answered in the negative. We are therefore clearly of the opinion that plaintiffs failed to establish their title to the land in controversy, and the court should have so instructed the jury. But instead of so instructing, the court instructed them if they believed the evidence to find for plaintiffs. In this there was error.

This disposes of the appeal. But there are other questions presented by the record, which have been argued and will necessarily arise on a new trial if plaintiffs succeed in making out their title. These are, as to what estate this will conveyed to Polly Brooks, and as to the statute of limitations — or possession. And our opinion is that, if David Brooks owned the lands named in the will, and Polly Brooks never married again, she was the owner of the same until her death unless she conveyed it, and then the assignee would be the owner until her death. And this being so, plaintiffs would have no right to the possession of said land, and no right to sue for the same until after the death of Polly. So, if the sixty-four and one-half acres, claimed (795) by defendants, is a part of the David Brooks lands mentioned in his will, and he was the owner thereof and had the right to convey the same by said will, then time did not commence to run against the plaintiffs until the death of Polly. And if defendants are tenants in common with plaintiffs, as they allege, it would require twenty years' sole possession by defendants from the death of Polly to defeat plaintiffs' claim. Ward v.Farmer, 92 N.C. 93, and cases cited. But if they are not tenants in common with plaintiffs, and hold under deeds from parties who are strangers (that is, others than plaintiffs), seven years' adverse possession would bar plaintiffs' right. The right of the feme defendant to dower has nothing to do with this proceeding.

There is error and defendants are entitled to a

New Trial.

Cited: Alexander v. Gibbon, 118 N.C. 798; Worth v. Simmons, 121 N.C. 362;Graves v. Barrett, 126 N.C. 270; Brown v. Morisey, 128 N.C. 140;Parker v. Taylor, 133 N.C. 104; Woody v. Fountain, 143 N.C. 69;McCaskill v. Walker, 147 N.C. 198; Gregory v. Pinnix, 158 N.C. 150;Sipe v. Herman, 161 N.C. 109; McKeel v. Holloman, 163 N.C. 136; Ditmorev. Rexford, 165 N.C. 620; Lester v. Harward, 173 N.C. 84; Moore v.Miller, 179 N.C. 398.