Smith v. . Benson

Winborne, J. Is there error in tbe judgment as of nonsuit from which this appeal is taken ? This is tbe sole question for consideration,— and tbe answer is No. Where in an action for tbe 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 by defendant, — the burden of proof as to each being on plaintiff. Mortgage Corp. v. Barco, 218 N. C., 154, 10 S. E. (2d), 642. In such an action plaintiff must rely upon tbe strength of bis 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; 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. Moreover, in all actions involving title to real property title is conclusively presumed to be out of tbe State unless it be a party to tbe action, G. S., 1-36, but “there is no presumption in favor of one party or tbe other, nor is a litigant seeking to recover land otherwise relieved of tbe burden of showing title in himself.” Moore v. Miller, supra. In tbe light of that presumption plaintiffs in the present action, assuming the burden of proof, elect to show title.in themselves by adverse possession, under known and visible lines and boundaries and under color of title for seven years, G. S., 1-38, 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. R. R., 125 N. C., 596, 34 S. E., 701; Johnston v. Case, 133 N. C., 491, 42 S. E., 957. *59 In Smith v. Fite, supra, tbis beadnote epitomizes tbe opinion of Smith, C. J., for tbe Court: “Where a party introduces a deed in evidence, which be intends to be used as color of title, be must prove that its boundaries cover tbe land in dispute, to give legal efficacy to bis possession.” In other words, tbe plaintiff must not only offer tbe deed upon which be relies, but be must by proof fit tbe description in tbe deed to tbe land in question. While tbe present action is for tbe recovery of land and for trespass thereon, tbe controversy seems to binge around tbe location of tbe disputed line known as tbe Sam Blank’s line. And as to tbis, tbe testimony of tbe surveyor A. A. Eobbins, appointed by tbe court, tends to show that be did not attempt to run tbe line. Furthermore, there is no evidence in tbe record showing its location. Tbis case is unlike processioning proceeding wherein when a bona fide dispute arises between landowners as to tbe true .location of tbe boundary line between them, tbe case may not be dismissed as in case of nonsuit. Cornelison v. Hammond, 225 N. C., 535, 35 S. E. (2d), 633. Tbe judgment below is Affirmed.