Davis v. . Stroud

Avery, J — after stating the facts: It is sometimes difficult to decide from such a mass of testimony and exceptions, as we have in this case, including even the objections entered for the defendant, the principle that governs a case. But we concur in the conclusion reached by the Judge below, that the plaintiffs are not entitled, in any aspect of the case, to recover, for reasons that seem to us obvious. The burden was upon the plaintiffs to show a better title, derived from John C. Washington, either legal or equitable, for the land described in the complaint, than that of defendant,- claimed from the same source. In order to make a prima jade showing of such title, it was necessary not only to offer testimony tending to identify the description contained in the bond for the title, by its boundaries, but tending to prove that those boundaries contained precisely the same land, covered by the courses and distances specifically set forth in the first paragraph of the original complaint, *489 and that the defendant was wrongfully in possession of some part of it when the action was brought. It is admitted that the plaintiffs, and those under whom they claim, had lived for forty-one years on the land described in the bond. But title cannot be acquired by possession under a claim indefinite in its extent. The limits to which title is claimed to be matured, must be shown, either by the definite calls of a deed, by making certain by apparant proof an ambiguous description, or by testimony tending to establish the known and visible boundaries of the claim. There was no testimony that the Court could have submitted to the jury tending to identify the limits of the “residue” of the tract of land sold by Washington to Davenport, and not previously conveyed by the latter to sundry persons, although the door was open unusually wide for the admission of such evidence. Of course the defendant could not be shown a trespasser without first locating the land on which it was alleged to have been committed. But if the outlines of the tracts already sold by Davenport to sundry persons < ould have been shown, and apparent proof had also been offered to establish the bouudaries of the conveyance from Washington to Davenport, and of the tract covered by that ambiguous description —“the residue” — it would have still remained to locate a trespass on it. Gilliam v. Bird, 8 Ired., 280. Had the “residue” of land mentioned in the bond been located so as to cover the defendant’s possession, there would have been still a fatal variance between the allegation and the proof, if there was no evidence to show that the boundaries referred to in the amended complaint, as containing the specific description of the land sued for, were identical with those located. Carpenter v. Huffsteller, 87 N. C., 273. Affirmed.