Phipps v. Gaskins

BrocK, J. This lawsuit has meandered at a leisurely pace. Complaint was-filed 25 August 1962; the last answer was filed on 22 October 1965;: on some date prior to 3 September 1963 Judge Bundy ordered a survey; between 3 September 1963 and 25 September 1963 the survey was made and map prepared; on 11 June 1964 Judge Cowper entered an order of reference; the Referee conducted hearings on 19' April 1965 and on 22 August 1966, and filed his report on 21 August 1967; upon appeal by plaintiffs from the Referee’s report the matter was heard by Judge Parker at the January 1969 Session, but by consent the judgment was not entered until 24 October 1969. The appeal from Judge Parker’s judgment was docketed in this Court, on 16 March 1970. Plaintiffs claim title to the tract of land described in a grant from the. State, dated 26 January 1910, to Mrs. Georgia A. Gaskins. The description of the outer boundaries of the grant will not close [587] .-and plaintiffs have undertaken to show the location of the lines on the ground by surveying according to the monuments referred to in the grant. However, aside from the problems encountered in their attempt to establish the location of the outer boundaries of the grant on the ground, plaintiffs completely failed to locate the exception contained in the grant. The exception reads as follows: “The lands mentioned in Judgment of Superior Court, Spring Term (Dare County) 1909, in case of C. E. Rollinson, Plaintiff vs Georgia A. Gaskins, are excepted from this grant, . . . .” “Where it appears from the showing of a prima jade title by the plaintiff or the judicial admission of the defendant that the land in dispute in an action of ejectment or other action involving the establishment of a land title is within the external boundaries of the plaintiff’s deed and that the defendant claims it under an exception in such deed, the burden is on the defendant to bring himself within •such exception by proper proof.” Paper Co. v. Cedar Works, 239 N.C. 627, 80 S.E. 2d 665. However, this rule is not applicable in the present case because it does not appear from plaintiffs’ evidence, or any admission by defendants, that the defendants are claiming within the exception in the grant; therefore the burden of proof was upon plaintiffs to locate the exception within the outer boundaries of the grant in order to show that defendants’ possessions were not within the exception. As was said in Peacock v. R. R., 203 N.C. 216, 165 S.E. 357, “[t]he principle that the burden of proof is on one claiming under an exception in a deed or grant to show that his claim comes within the exception (citation omitted), is not applicable in the instant case, for the reason that it does not appear that the defendants are claiming under the exception. The burden was upon the plaintiff and not upon the defendants to offer evidence tending to show that the possession of the defendants was not within their rights. In the absence of such evidence, there was no error in the judgment dismissing the action as of nonsuit.” The judgment appealed from is Affirmed. Beitt and Hedeioic, JJ., concur.