¶1concurring:
¶2I concur in the conclusion of the majority (1) that the trial judge was correct in directing a verdict against defendants, who had the burden of proof on the second and third issues, and in adjudicating that defendants have no interest in the lands described in the complaint; (2) that the judge’s affirmative finding that plaintiff had established title to the two tracts described in the complaint is not supported by the evidence; and (3) that his adjudication that plaintiff is the owner and entitled to the possession of the two tracts of land described must be vacated. Notwithstanding, I direct attention to the following:
¶3The court’s erroneous adjudication that plaintiff was the owner and entitled to the possession of the lands described in the complaint was made upon the false premise that “from the evidence offered by the plaintiff (sic) no inference adverse to the title of the plaintiff arose and the evidence offered by the plaintiff was clear and conclusive and uncontradicted by evidence of the defendants.” Although the result of this Court’s decision is correct, I dissent from the intimation in the majority opinion that it would have been proper to have directed a verdict in favor of plaintiff, upon which rested the burden of proof, if its evidence had, in fact, been “clear, conclusive and uncontradicted by evidence of the defendant.” Now, as before the enactment of the Rules of Civil Procedure, G. S. 1A-1 et seq., the credibility of the witness and the weight of the evidence is for determination by the jury notwithstanding there is no conflict in the evidence.
¶4Based on the admissions in the pleadings, I would hold that plaintiff is entitled to an adjudication that it owned an undefined interest in the lands described in paragraph 2 of the complaint; that, because of defendants’ failure of proof, plaintiff is entitled to a directed verdict that defendants have no right, title, or interest in the lands described in the complaint; and that the judgment of Cowper, J., should be stricken and *80the case remanded to the Superior Court for judgment in accordance with this opinion.