Brock v. . Wells

Walker, J., after stating the case: We need not discuss the questions raised on the argument as to plaintiffs’ disabilities or *172 defendants’ title to tbe land by adverse possession, as we are of tbe ojoinion tbat there was no competent evidence to sbow tbat idaintiffs owned tbe land or any part thereof. Tbe title was not shown to be in John Wilson, who conveyed it to bis daughter, Mrs. Bowen, under whom they derive title, and no other claim of title was set up in behalf of Mrs. Bowen. In truth, she had none, nor did Wilson have any, so far as this case shows. Plaintiffs contend, though, that defendants are estopiped to claim the title, or rather to deny their title, as John Gr. Eussell acquired the possession from the Bowens, as their tenant, and defendants claim under Eussell. If a party takes possession under another, as a tenant or permissive occupant, he cannot dispute the title of the person from whom he got the possession, until he has fully surrendered it or given it back to him from whom he received it. Farmer v. Pickens, 83 N. C., 549; Springs v. Schenck, 99 N. C., 552, and LeRoy v. Steamboat Co., ante, 109, and cases therein cited. But when the evidence in the case is properly considered, there was none of a competent nature for submission to the jury, that Eussell acquired the possession from the Bowens. They left the land, and a month afterwards Eussell took possession of it. There was nothing to show any connection between him and the Bowens, except the mere sequence of events as we have stated them, unless the testimony of W. H. Eussell supplies the missing link; and we dp not think that, if it is susceptible of that construction, it should be allowed to do so, as it was hearsay. It is perfectly evident that he knew nothing about it — that is, had no competent knowledge of the facts. He admitted as much, and expressly stated that he was speaking from hearsay, which was incompetent, and should have been excluded when defendant objected; and he.further said that all he knew was that “Fussoll lived and worked there.” It was so clear that he was basing his statements upon hearsay, or upon his own confession of an entire want of knowledge, that the court should not have considered them as evidence of the disputed fact. There was error in this respect. Nor is the testimony of B. W. *173 Blanton any more definite. There is nothing to show that Fus-sell was let into possession by the Bowens. The mere fact that he was in possession after they left does not tend to show it. There must be something more than this isolated fact. Plaintiff’s own witness,' Blanton, testified that Fussell did not take possession until a month after the Bowens had left the land. It was error to admit the hearsay testimony of W. II. Fussell against the objection of the defendants, and because of this error the appellants are entitled to another jury. ~We have not considered the exceptions of defendants which are based upon their claim of adverse possession, and the evidence they offered to support it, and for the obvious reason that the burden is upon the plaintiff in the first instance to show a good title, before the defendant is called upon to say anything in defense. “The rule is well settled,” as was said in Rumbough v. Sackett, 141 N. C., 495, “that a plaintiff in ejectment must recover, if at all, upon the strength of his own title, and not upon the weakness of his adversary’s. He must, in other words, show a title good against the world, or good against the defendant by estoppel,” citing- Mobley v. Griffin, 104 N. C., 112; Campbell v. Everhart, 139 N. C., 503. One reason for the rule is, that possession, being prima facie evidence of ownership, will protect the defendant, unless the plaintiff shows a superior title, or a right to oust him, as was held in Mitchell v. Garrett, 140 N. C., 397, citing 2 Lewis Blk., p. 663, note (7); Tyler on Ejectment, 204; Newell on Ejectment, 433 (13). A new trial is ordered because of the error indicated. New trial.