Coburn v. Roanoke Land & Timber Corp. , 259 N.C. 100 ( 1963 )

RodmaN, J.

Among the deeds on which plaintiffs relied to support their claim of title was a deed executed in May 1879 by James E. Moore, commissioner, to John D. Biggs and Dennis Simmons. This deed recites that it was made pursuant to a decree of the Superior Court of Martin County in an action entitled John D. Biggs and Company v. A.. F. Dupree. Plaintiffs in a hearing before the referee offered no evidence to support the recitals in the deed executed by Moore as commissioner. When the cause was called for hearing at the November Term 1962 on plaintiffs’ exceptions to the report of the referee and defendants’ motion to confirm the referee’s report, plaintiffs asked leave to file an affidavit to the effect that Martin County Courthouse was burned in 1883, that a search had been made in the present clerk’s office for the proceeding recited in the Moore deed, but no record of such proceeding could be found. The court declined to reopen the case for the purpose of taking further evidence. Plaintiffs assign this ruling as error.

The assignment cannot be sustained for two reasons: (1) Plaintiffs do not claim they have shown a good paper title. It was therefore immaterial whether Moore as commissioner had authority to convey. His deed would, if it described the land in controversy, constitute color of title; and possession thereunder for the requisite period would have sufficed to give title; but the referee found and the court approved that there was neither description nor possession of the land in controversy. (2) The right to offer evidence after a party has rested is a matter in the discretion of the trial court. Builders Supply Co. v. Dixon, 246 N.C. 136, 97 S.E. 2d 767; Miller v. Greenwood, 218 N.C. 146, 10 S.E. 2d 708; Russell v. Koonce, 104 N.C. 237.

Plaintiffs’ second exception and assignment of error “is to the order allowing appellees’ motion for confirmation of the report of the Referee.” While plaintiffs made specific exceptions to the findings by the referee, they did not except to the findings of fact made by the court.

The pleadings put in issue the question of title to the 87.79 acres. Smith v. Pate, 246 N.C. 63, 97 S.E. 2d 457; Hayes v. Ricard, 244 N.C. 313, 93 S.E. 540. The issues tendered by plaintiffs as to the location of the boundary separating the lands of plaintiffs from the lands of defendants Lindsley were not determinative of the controversy, If plaintiffs.were not the owners of the lands described in the amended complaint, they were not entitled to recover. The court therefore properly declined to submit the question of boundary to the jury. Cotton Mills v. Maslin, 200 N.C. 328, 156 S.E. 484.

Plaintiffs’ third and final exception and assignment of error is “to .the signing of the judgment set out in the record.” The unchallenged findings made by the court on its own review of the evidence supports the conclusion reached by .the court and the judgment based thereon. •It was proper, therefore, for it to sign the judgment.

No error.