Hill v. . Young

Winborne, J. While defendant presents numerous exceptive assignments, only a few require consideration, and none shows prejudicial error. In brief filed defendant states that “This is a processioning proceeding, with title drawn in issue, wherein defendant denies correctness of location of the dividing line, and pleads estoppel and statute of limitations in bar of plaintiffs’ claim.” A perusal of the record discloses that in the Superior Court this is the theory upon which the case was tried. The defendant pleads and contended upon the trial below that even though the jury should find the true location of the dividing line to be as contended for by plaintiffs, still plaintiffs are restricted to the location of the line as contended for by defendant for that he and those under whom he claims title have for more than twenty years had adverse possession of the land lying between those two locations. This is tantamount to a denial of plaintiffs’ title pro tanto. The court charged the jury that the burden of proof as to the true location of the dividing line is upon the plaintiffs. This is in accordance with well settled rule enunciated in decisions of this Court. Hill v. Dalton, 140 N. C., 9, 52 S. E., 273; Woody v. Fountain, 143 N. C., 66, 55 S. E., 425; Garris v. Harrington, 167 N. C., 86, 83 S. E., 253; Carr v. Bizzell, 192 N. C., 212, 134 S. E., 462. With respect to the second issue the court charged: “Now, gentlemen of the jury, the burden is always upon the plaintiffs where the statute of limitations is pleaded (but in this ease whether that is true will depend entirely upon whether or not you find from the evidence, and under the law, that the defendant has acquired rights to this land by reason of adverse possession. He having pleaded adverse possession, the law puts the burden upon him to satisfy you by the greater weight of the evidence that he has acquired rights through adverse possession *118 against the true owners).” Defendant excepts to that portion in parentheses. There are other exceptions to similar portions of the charge. In the light of the facts on this record, the exception is not sustained. Ordinarily, in processioning proceedings title to the land is not in issue, Cole v. Seawell, 152 N. C., 349, 67 S. E., 753, but if defendant by answer should put the title in issue the proceeding is converted into a civil action to quiet title and is transferred to the civil issue docket of the Superior Court for trial in accordance with rules of practice applicable to such actions originally instituted in that court. Woody v. Fountain, supra. Even though the proceeding be not transferred to the civil issue docket and the Superior. Court acquires possession thereof on appeal, that court has full power to dispose of it. Little v. Duncan, 149 N. C., 84, 62 S. E., 770; Ryder v. Oates, 173 N. C., 569, 92 S. E., 508; Bradshaw v. Warren, 216 N. C., 354. Upon trial in Superior Court, it devolves upon plaintiffs to make out their title, and the burden is still upon them to establish the line as contended for by them. Hill v. Dalton, supra; Woody v. Fountain, supra. When the plaintiffs have established a legal title to the land, and the defendant undertakes to defeat a recovery by showing adverse possession for the required period of time, either with or without color of title, the defense is an affirmative one, and thereunto the defendant becomes the actor and has the burden of establishing it by the greater weight of the evidence. Bryan v. Spivey, 109 N. C., 57, 13 S. E., 766; Ruffin v. Overly, 105 N. C., 78, 11 S. E., 251; Power Co. v. Taylor, 194 N. C., 231, 139 S. E., 381. As was said in Power Co. v. Taylor, supra, “This is not placing the burden of proof upon both parties at the same time, but is simply requiring the actor in each instance, while occupying that position, to carry the laboring oar.” In the case at bar the second issue does not relate to the ordinary plea of the statute of limitations, where the rule requires the plaintiffs to show that the action is not barred by the statute. Here the defendant invokes the statute in aid of his affirmative plea on which he had the burden of proof. Having tendered the issue, defendant cannot now complain as to its form. McIntosh, North Carolina P. & P., 545. Phifer v. Alexander, 97 N. C., 335; Greene v. Bechtel, 193 N. C., 94, 136 S. E., 294. The burden of proving the underlying fact of adverse possession remains the same. Defendant excepts to the refusal of the court to submit the third issue tendered by him. The issues submitted are sufficient to present to the jury proper inquiries as to all the determinative facts in dispute, as well as to afford the parties opportunity to introduce all pertinent evidence and to apply it fairly. When thus tested, the issues submitted meet all *119 requirements. McIntosh, North Carolina P. & P., 545; Gross v. McBrayer, 159 N. C., 372, 74 S. E., 915; Mann v. Archbell, 186 N. C., 72, 118 S. E., 911; Erskine v. Motor Co., 187 N. C., 826, 123 S. E., 193; Hooper v. Trust Co., 190 N. C., 423, 130 S. E., 49. In tbe case in band tbe proposed issue bears upon evidentiary matter pertinent to tbe first issue. Tbe evidence was received and so presented to tbe jury. There is no error in refusing to submit tbe issue. Careful consideration of all other exceptions presented on this appeal convinces us that tbe case has been fairly tried and without prejudicial error. Tbe verdict is supported by tbe evidence. Tbe judgment is affirmed. No error.