Murphy v. Smith

70 S.E.2d 697 (1952) 235 N.C. 455

MURPHY et al.
v.
SMITH et ux.

No. 310.

Supreme Court of North Carolina.

April 30, 1952.

Sam O. Worthington, Greenville, R. A. Nunn, New Bern, for petitioners appellants.

H. P. Whitehurst, W. B. R. Guion, and G. B. Riddle, Jr., all of New Bern, for respondents appellees.

WINBORNE, Justice.

After careful consideration of the several assignments of error presented by appellants, the petitioners, on this appeal, error is not made to appear.

The first seven assignments of error are based upon exceptions to the failure of the referee to find certain facts. Such failure is not ground for exception. Hence they are untenable. The failure to find certain facts might be ground for a motion to recommit the report with instructions to find them, if it appeared that they were material. Tilley v. Bivens, 110 N.C. 343, 14 S.E. 920; Blalock v. Kernersville Mfg. Co., 110 N.C. 99, 14 S.E. 501; Scroggs v. Stevenson, 100 N.C. 354, 6 S.E. 111; Williams v. Whiting, 92 N.C. 683.

The assignment of error, based upon exception No. 8, to finding of fact No. 16 made by the referee is likewise untenable, for that:

It is a rule of procedure, long established in this State, that findings of fact made by a referee, and affirmed by the judge, are conclusive on appeal if there be evidence tending to support them. See, among other cases, Frey v. Middle Creek Lbr. Co., 144 N.C. 759, 57 S.E. 464; Henderson v. McLain, 146 N.C. 329, 59 S.E. 873; Lexington Mirror Co. v. Philadelphia Casualty Co., 153 N.C. 373, 69 S.E. 261; McGeorge v. Nicola, 173 N.C. 707, 91 S.E. 708; Gaither v. Albemarle Hospital, N. C., 70 S.E.2d 680.

Applying this rule to this finding of fact, the testimony of petitioner Viney Langston tends to support the finding. She testified, "John Jenkins was living the last time I heard of him * * * John was in Lexington, Ky. the last I heard of him in 1932." The action was brought on 24 February, 1939, and there is no evidence that seven years absence from which presumption of death would arise expired before that date.

But petitioners say they have right to a jury trial.

In this connection, the procedure which must be pursued in a compulsory reference in order to preserve the right to a trial by jury is clearly and concisely stated in Booker v. Town of Highlands, 198 N.C. 282, 151 S.E. 635, 637, in opinion by Stacy, C. J., the first two requirements being pertinent to case in hand, as follows:

"1. Object to the order of reference at the time it is made. * * *

"2. On the coming in of the report of the referee, if it be adverse, file exceptions in apt time to particular findings of fact made by the referee, tender appropriate issues based on the facts pointed out in the exceptions and raised by the pleadings, and demand a jury trial on each of the issues thus tendered. * * *"

And "a failure to observe any one of these requirements may constitute a waiver of the party's right to have the controverted matters submitted to a jury, and authorize the judge to pass upon the exceptions without the aid of a jury." McIntosh, Sec. 525. See also Gaither v. Albemarle Hospital, N.C., 70 S.E.2d 680.

In Brown v. Clement Co., 217 N.C. 47, 6 S.E.2d 842, 847, opinion by Barnhill, J., it is said, "Notwithstanding an order of reference, a determination of the issues of fact raised by the pleadings and evidence in the cause remains as the primary purpose. A jury trial does not extend to every finding of fact made by the referee and excepted to by the parties, but only to issues of fact raised by the pleadings and passed upon by the referee. McIntosh, Sec. 525. Questions of fact may not be substituted for issues merely because there is a controversy, as disclosed by the exceptions, as to what the facts are. McIntosh 525(4)." See also Simmons v. Lee, 230 N.C. 216, 53 S.E.2d 79.

In the light of these decisions, it appears that petitioners excepted to the order of compulsory reference, and upon the coming in of the report of the referee, adverse to them, filed exception to the 16th finding of fact made by the referee, and tendered issues,—and demanded a jury trial. But the issues tendered are not those arising on the pleadings. Hence there is a waiver of the petitioners' right to have the controverted matters submitted to a jury. Therefore the judge was authorized to pass upon the exception without the aid of a jury, * * * and the finding of fact, supported by evidence, and approved by the judge is binding on this Court.

The assignments of error based upon exception to the conclusion of law that motion for nonsuit should be allowed, and upon the exception to the judgment of nonsuit are not tenable for that:

Tenancy in common in land is necessary basis for maintenance of special proceeding for partition by petition to the Superior Court. G.S. §§ 46-1, 46-3, formerly C.S. 3213, 3215, Gregory v. Pinnix, 158 N.C. 147, 73 S.E. 814. And when tenancy in common is denied, and there is a plea of sole seizin, the proceeding in legal effect is converted into an action in ejectment and should be transferred to the civil issue docket for trial at term on issue of title, the burden being upon the petitioners to prove their title as in ejectment. G.S. § 1-399, formerly C.S. 758. Gibbs v. Higgins, 215 N.C. 201, 1 S.E.2d 554; Keen v. Parker, 217 N.C. 378, 8 S.E.2d 209; Bailey v. Hayman, 222 N.C. 58, 22 S.E.2d 6; Jernigan v. Jernigan, 226 N.C. 204, 37 S.E.2d 493.

And in an action to recover land 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, supra; Stewart v. Cary, 220 N.C. 214, 17 S.E.2d 29, 144 A.L.R. 1287.

In the present action petitioners base their claim to tenancy in common upon contention that Jane Jenkins died intestate and seized of the land in question, that John Jenkins was her only child, that he is dead without lineal descendants, and that they, the petitioners are his collateral heirs. And it was admitted on the hearing before the referee that if John Jenkins is alive he owns the lands to the exclusion of both petitioners and respondents.

In this connection, there is a rule of evidence that "the absence of a person from his domicile, without being heard from by those who would be expected to hear from him, if living, raises a presumption of his death—i. e., that he is dead at the end of seven years," Beard v. Sovereign Lodge, 184 N.C. 154, 113 S.E. 661, 662; University of N. C. v. Harrison, 90 N.C. 385; Steele v. Metropolitan Life Ins. Co., 196 N.C. 408, 145 S.E. 787, 61 A.L. R. 821; Deal v. Wachovia Bank & Trust Co., 218 N.C. 483, 11 S.E.2d 464; Carter v. Lilley, 227 N.C. 435, 42 S.E.2d 610; Wachovia Trust Co. v. Deal, 227 N.C. 691, 44 S.E.2d 73.

Such presumption, arising from seven years absence under the rule, is a presumption of fact which may be rebutted. Chamblee v. Security Nat. Bank, 211 N.C. 48, 188 S.E. 632, and cases cited. See also Deal v. Wachovia Trust Co., supra; Wachovia Trust Co. v. Deal, supra.

However, the proof of facts on which such presumption arises raises no presumption that the missing person died without lineal descendants. University v. Harrison, supra; Warner v. Western North Carolina RR, 94 N.C. 250; Deal v. Wachovia Trust Co., supra; Wachovia Trust Co. v. Deal, supra.

Applying these principles to the findings of fact, supported by evidence, and approved by the judge, we hold that the conclusion that the petitioners have failed to make good their allegations of tenancy in common is correct. Hence the judgment of nonsuit was proper.

This record fails to present a case of who has the better title under a common source to which Stewart v. Cary, supra, cited by appellants, relates. Failing to connect their claim with Jane Jenkins, there is no common source.

Other assignments of error have been given due consideration, and are found to be without merit.

The judgment below is affirmed.