Love v. . Gregg , 117 N.C. 467 ( 1895 )

The plaintiff sues for possession of three tracts of land, and the defendant denies his title and wrongful possession in himself. On the trial below and in this Court the parties, without objection, used a map on which the lands were marked out. One tract was designated as E. F. H. J., with straight and parallel lines, inside of which was a 50-acre tract with straight and parallel "red lines," corners marked 1, 2, 3 and 4. The trial settled down on the title to the land within the "red lines." The plaintiff offered his evidence and rested. The defendant showed a grant from the State and mesne conveyances for certain lands, and proved (468) open, continuous, notorious and adverse possession of the land within the "red lines" from 1850 to the present time, which land was within the limits of the grant. It was proved by Noah Webb that Tyre Webb and those claiming under him had been in such possession under color of title since 1850 of the land within the "red lines," and there was no evidence conflicting with Noah Webb's evidence, but some confirming the same. The defendant claims through this chain of title. The parties failing to tender any issues, his Honor, after the evidence was closed, submitted an issue whether the possession of the defendant in the "red lines" was wrongful, being the only possession shown by the plaintiff. The court then charged the jury that if the plaintiff had located the land as contended by him, he would be entitled to recover unless the defendant and those under whom he claimed had ripened title in themselves by possession, and that if the jury believed Noah Webb, and if Tyre Webb had been in open adverse possession under color of title within the red lines for seven years, then the plaintiff could not recover. There was a verdict and judgment for the defendant.

The plaintiff excepted to the refusal of the court to admit a copy of a deed offered in evidence which had not been probated. The copy was immaterial, as it did not refer to the land in the red lines, and the exception is overruled.

The second exception, that the court failed to submit a separate issue as to the location of plaintiff's land, is overruled because the controversy was exclusively as to the land within the "red lines."

The third exception was to charge that, if the jury believed Noah Webb, the plaintiff could not recover. This is also overruled because it is not error to charge the jury that if they believe a single (469) uncontradicted witness the case is made out, and where there is no conflict of evidence the Judge should direct the verdict to be entered, if the jury believe it. This is no expression of opinion on the evidence. Hannon v. Grizzard, 89 N.C. 115; Purifoy v. R. R.,108 N.C. 100; Chemical Co. v. Johnston, 101 N.C. 223.

Affirmed.

Cited: Holton v. R. R., 127 N.C. 257.