Scott v. Lewis

98 S.E.2d 294 (1957) 246 N.C. 298

Elijah SCOTT, George Scott, Janie Bryant and Bertha Scott,
v.
Meriweather LEWIS and J. T. Taylor.

No. 105.

Supreme Court of North Carolina.

May 22, 1957.

L. T. Grantham, Cecil D. May, Lee & Hancock, New Bern, for plaintiffs, appellants.

Ward & Tucker, R. E. Whitehurst, New Bern, for defendants, appellees.

WINBORNE, Chief Justice.

Appellants in brief filed here on this appeal state that "at the trial of the present case in the Superior Court the plaintiffs did not rely on any paper title, but sought to show that they, and their tenants in common, the children and grandchildren of Stephen and Sophia Scott, had remained in open, notorious and continuous adverse possession under known and visible lines and boundaries since 1907 despite the outcome of the earlier case."

This position is untenable.

When in an action for the recovery of land and for trespass thereon defendant denies plaintiff's title and defendant's trespass, nothing else appearing, issues of fact arise both as to title of plaintiff and as to trespass by defendant, the burden as to each 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.

In such action plaintiff must rely upon the strength of his own title. This requirement may be met by various methods which are specifically set forth in Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142. See, also, Prevatt v. Harrelson, 132 N.C. 250, 43 S.E. 800; Moore v. Miller, 179 N.C. 396, 102 S.E. 627, 628; Smith v. Benson, supra; Locklear v. Oxendine, supra, and many other cases.

Moreover, in all actions involving title to real property, title is conclusively presumed to be out of the State unless it 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; Smith v. Benson, supra; Locklear v. Oxendine, supra.

In the light of such presumption, it appears that plaintiffs in present action, assuming the burden of proof, have elected to show title in themselves by adverse possession, under known and visible lines and boundaries without color of title for twenty years, which is one of the methods by which title may be shown. Locklear v. Oxendine, supra; Williams v. Robertson, 235 N.C. 478, 70 S.E.2d 692.

In this connection it is pertinently stated in Wallin v. Rice, 232 N.C. 371, 61 S.E.2d 82, 83, in opinion by Devin, J., later C. J., "One may assert title to land embraced within the bounds of another's deed by showing adverse possession of the portion claimed for twenty years under known and visible lines and boundaries, G.S. § 1-40, but his claim is limited to the area actually possessed, and the burden is upon the claimant to establish his title to the land in that manner." See Berry v. Coppersmith, 212 N.C. 50, 193 S.E. 3; Davis v. Federal Land Bank, 219 N.C. 248, 13 S.E.2d 417; Carswell v. Town of Morganton, 236 N.C. 375, 72 S.E.2d 748; Price v. Whisnant, 236 N.C. 381, 72 S.E.2d 851; Lindsay v. Carswell, 240 N.C. 45, 81 S.E.2d 168.

In the instant case the evidence offered is insufficient to identify the lines and boundaries of any particular portion in actual possession.

The principle prevails in this State that several successive possessions may be tacked for the purpose of showing a continuous adverse possession where there is privity of estate or connection of title between several successive occupants. Ramsey v. Ramsey, 224 N.C. 110, 39 S.E.2d 340; Locklear v. Oxendine, supra; Williams v. Robertson, supra.

But here the possession of Stephen Scott and his wife, Sophia Scott, is unavailing to the Scott children and grandchildren, plaintiffs in this action. Whatever rights Stephen Scott acquired by alleged adverse possession, in the absence of evidence to the contrary, descended to his heirs at law, subject to the dower right of Sophia Scott, his widow. And his heirs at law, with the joinder of Sophia Scott, undertook to assert ownership of the lands in the action against Blades Lumber Company, as hereinabove set forth, and failed as indicated by the judgment affirmed on appeal to this Court as reported in 144 N.C. 44, 56 S.E. 548. The heirs at law, and Sophia Scott, parties to the action, are bound by the judgment therein. And "possession of defendant (plaintiff there), in a suit for ejectment or quieting of title, after judgment against him, is deemed subordinate to the title of the successful plaintiff in the absence of clear notice of hostility." 2 C.J.S. Adverse Possession § 120, p. 672.

Whatever rights plaintiffs may have in respect to the lands, or portions thereof, here involved, they are not sufficiently identified to be successfully asserted on this record.

Hence, judgment from which appeal is taken must be, and it is

Affirmed.