Shingleton v. NORTH CAROLINA WILDLIFE R. COM'N

102 S.E.2d 402 (1958) 248 N.C. 89

J. A. SHINGLETON
v.
NORTH CAROLINA WILDLIFE RESOURCES COMMISSION and C. A. Manning.

No. 164.

Supreme Court of North Carolina.

March 26, 1958.

I. C. Wright, Wilmington, for plaintiff appellant.

George B. Patton, Atty. Gen., for the State.

Corbett & Fisler, Burgaw, for defendant appellee.

WINBORNE, Chief Justice.

Did the trial court err in granting judgment as of nonsuit? This is the determinative question on this appeal. Pertinent decisions of this Court dictate negative answer.

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 of defendant, the burden of proof 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; Williams v. Robertson, 235 N.C. 478, 70 S.E.2d 692; Meeker v. Wheeler, 236 N.C. 172, 72 S.E.2d 214; Cherry v. Roanoke Tobacco Warehouse Co., 237 N.C. 362, 75 S.E.2d 124; Powell v. Mills, 237 N.C. 582, 75 S.E.2d 759; Skipper v. Yow, 238 N.C. 659, 78 S.E.2d 600; Norman v. Williams, 241 N.C. 732, 86 S.E.2d 593; Jones v. Turlington, 243 N.C. 681, 92 S.E.2d 75; Hayes v. Ricard, 245 N.C. 687, 97 S.E.2d 105; Scott v. Lewis, 246 N.C. 298, 98 S.E.2d 294.

Indeed, 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, and applied in numerous cases, some of the late ones being Locklear v. Oxendine, supra; McDonald v. McCrummen, 235 N.C. 550, 70 S.E.2d 703; also Meeker v. Wheeler, supra.

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, 179 N.C. 396, 102 S.E. 627, 628; also Smith v. Benson, supra, and Locklear v. Oxendine, supra.

In the light of such presumption, plaintiff in the present action, assuming the burden of proof, has elected to show title in himself by adverse possession, under known and visible lines and boundaries and under color of title, which is one of the methods by which title may be shown. In pursuing this method a deed offered as color of title is such only for the land designated and described in it. Davidson v. Arledge, 88 N.C. 326; Smith v. Fite, 92 N.C. 319; Barker v. Southern R. Co., 125 N.C. 596, 34 S.E. 701; Johnston v. Case, 131 N.C. 491, 42 S.E. 957; Smith v. Benson, supra; Locklear v. Oxendine, supra.

Indeed 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 the several occupants. See Locklear v. Oxendine, supra; Ramsey v. Ramsey, 224 N.C. 110, 29 S.E.2d 340; Meeker v. Wheeler, supra.

Plaintiff, relying upon adverse possession of predecessors in his chain of title, offers a deed to the Neuse Lumber Company, Inc., and then he offers a deed to himself from a commissioner, purporting to act under authority of judgment in a tax foreclosure proceeding. But the judgment roll in such proceeding is not offered in evidence. This creates a break in plaintiff's chain of title. Kelly v. Kelly, 241 N.C. 146, 84 S.E.2d 809, 813. In this Kelly case it is stated: "In the instant case, neither the interlocutory judgment of foreclosure nor the final decree of confirmation of sale pursuant thereto, was introduced in the trial below. The failure to introduce such documents left a break in defendants' chain of title. The action should have been nonsuited." See also Kelly v. Kelly, 246 N.C. 174, 97 S.E.2d 872.

However, this will not preclude plaintiff from bringing another action if the facts in respect to the tax foreclosure are accordant with law.

Hence this Court expresses no opinion as to other matters presented on this record.

Affirmed.

RODMAN, J., took no part in the consideration or decision of this case.