Tripp v. Keais

121 S.E.2d 596 (1961) 255 N.C. 404

Samuel J. TRIPP
v.
Phillip KEAIS.

No. 26.

Supreme Court of North Carolina.

September 27, 1961.

John A. Wilkinson, Hallett S. Ward, Washington, for plaintiff appellant.

LeRoy Scott, A. W. Bailey, Washington, for defendant appellee.

WINBORNE, Chief Justice.

It is well settled in North Carolina that where 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 as to each being on plaintiff. Federal Farm Mortgage Corporation 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; Scott v. Lewis, 246 N.C. 298, 98 S.E.2d 294.

In such action plaintiff must rely on 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; Smith v. Benson, supra; Locklear v. Oxendine, supra, and many others.

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 [179 N.C. 396, 102 S.E. 628]; Smith v. Benson, supra; Locklear v. Oxendine, supra; Scott v. Lewis, supra.

In the light of that presumption, plaintiff in the present action, while introducing three deeds into evidence, did not attempt to show a record chain of title, but assuming the burden of proof, elected to show title in himself by adverse possession, under known and visible lines and boundaries without color of title for twenty years, and with color of title for seven years, which are methods by which title may be shown. G.S. § 1-38; Locklear v. Oxendine, supra; Williams v. Robertson, 235 N.C. 478, 70 S.E.2d 692.

In brief filed here on this appeal, plaintiff states that "while the court adequately defined the meaning of adverse possession, as such, it failed to point out to the jury the necessity of defendant's describing or identifying the land claimed by him to have been held adversely." But this argument will not avail plaintiff, because, as stated above, the plaintiff in such a case must rely on the strength of his own title and not on the weakness of defendant's.

All assignments of error which appellant brings forward pertain to the court's charge to the jury relative to the contentions of defendant. However, since the jury found, under proper instructions, that plaintiff is not the owner of the land in question, it is unnecessary to discuss these assignments of error.

Hence, in the judgment below there is No error.