Hulse v. . Brantley

Merrimon, C. J. after stating the case: It did not appear on the trial that the title to the land in controversy ever passed from the State by grant or otherwise. So that, in any view of the evidence, the plaintiff failed to show title in himself thereto by proving color of title and actual possession within known and visible boundaries for seven yea.rs. He produced evidence tending to show that he and the person under whom he claimed exercised control over and did acts of ownership on the land embraced in the locus in quo, by cutting timber and otherwise at intervals before the time of the alleged trespass. It might, however, be well insisted that the evidence taken as true did not prove that he then or at any time had actual or, indeed, any possession. The evidence tending to prove actual possession was meagre and-not satisfactory, and he failed to show any title by conveyance. Ruffin v. Overby, 105 N. C., 78. There was evidence, though not very definite and full, tending to prove that the defendants had actual possession of the locus in quo at the time of, long before, and ever since the alleged trespass. One witness testified, among other things, that “William Brantley and his wife and Lewis, the defendants, are now in possession of the land. I don’t know when Mrs. Brantley took possession. I think it was during the war, as she and her family have been there ever since.” There was other evidence tending more or less strongly to prove such possession. There was clearly evidence of the defendants to go to the jury to prove that the plaintiff did not have the possession of the locus in quo at the time of the alleged trespass or at any time, and that the defendants then and long before that time had actual possession thereof, and it was the province of the jury to determine its weight. If they had such possession, and the plaintiff failed to show title in himself or possession, *137 it was not necessary that the defendants should show title otherwise, or any deed, as contended. The whole charge of the Court to the jury is not before us, and we cannot see the precise bearing and application of the instructions complained of by the appellant. The first one is not precise, and perhaps not entirely accurate in all respects, but in view of the evidence we cannot see that the plaintiff suffered prejudice from it. The burden is on him to show that he did. The second one is not objectionable. The plaintiff alleged that he had possession, and this the defendant denied. The burden was on the former to prove his material allegation thus put in issue. The latter clause of this instruction was cautionary, and not misleading or confusing to the jury. It does not so appear. Affirmed.