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241 N.C. 732

86 S.E.2d 593

Norman v. Williams

Supreme Court of North Carolina

Decided March 30, 1955

Supreme Court of North Carolina · decided 1955-03-30

Relies on Mobley v. . Griffin · Locklear v. Oxendine · Powell v. Mills

Good law ✅— No negative treatment on recordhow we know

Decided 1955-03-30

How this case has been cited

Cited by 38 later decisions — most recently January 2018 · most notably Andrews v. Bruton (1955), McDaris v. Breit Bar" T" Corporation (1965)

38 state decisions

1201955196019701980199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Winborne, J.

¶1 Appellants state in their brief that the questions involved on this appeal are: “1. Did the court err in sustaining the defendant’s motion for judgment of nonsuit ? 2. Did the court err in entering the judgment which appears of record ?” In the light of the record and the evidence appearing in the case on appeal, the answer to each of *737 these questions must be “No.” The evidence fails to make out a prima facie showing of title in plaintiffs.

¶2 To sustain an action for trespass by cutting timber, plaintiff must allege and show that he is the owner of the land from which the timber was cut. Johnson v. Lumber Co., 147 N.C. 249, 60 S.E. 1129.

¶3 And 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 the title of plaintiff and as to trespass by defendant, — the burden of proof as to each issue being on plaintiff. 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; McDonald v. McCrummen, 235 N.C. 550, 70 S.E. 2d 703; Meeker v. Wheeler, 236 N.C. 172, 72 S.E. 2d 214; Powell v. Mills, 237 N.C. 582, 75 S.E. 2d 759.

¶4 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 Prevatt v. Harrelson, 132 N.C. 250, 43 S.E. 800; Moore v. Miller, 179 N.C. 396, 102 S.E. 627, and many other decisions, some of the late ones being Smith v. Benson, supra; Locklear v. Oxendine, supra; Williams v. Robertson, supra; McDonald v. McCrummen, supra; Meeker v. Wheeler, supra; Powell v. Mills, supra.

¶5 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.” See Williams v. Robertson, supra, and cases cited. See also Powell v. Mills, supra.

¶6 However, testing the evidence in the case by these rules, it does not appear that plaintiffs have brought their case within any of them. If they intend to invoke the sixth rule, that is, to show a common source of title, and in themselves a better title from that source, Stewart v. Cary, 220 N.C. 214, 17 S.E. 2d 29, the evidence does not connect defendant with any source of title common to both, and is, therefore, insufficient. Hence the question as to the effect of the recitals in the Sheriff’s deed is not reached. But compare the cases of McDonald v. McCrummen, supra, and Meeker v. Wheeler, supra, and cases cited.

¶7 On the other hand, if plaintiffs would rely upon adverse possession under known and visible lines and boundaries, under color of title, the evidence is vague and insufficient in either situation. In pursuing this method of proving title, a deed offered as color of title is such for only *738 the land designated and described in it. See Locklear v. Oxendine, supra; Powell v. Mills, supra, and cases cited.

¶8 Apparently this action bas been prosecuted under misapprehension of applicable principles of law.

¶9 In the light of this opinion, if proof be available, plaintiffs may yet make out a prima facie title in a new action. See last paragraph in McDonald v. McCrummen, supra; Meeker v. Wheeler, supra.

¶10 But on this record, motion for judgment of nonsuit was properly allowed. Hence the judgment below is

¶11 Affirmed.

BaeNhill, C. J., and Devin, J., took no part in the consideration or decision of this case.
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