Thompson v. Hayes

HEDRICK, Judge. Defendants first assign as error the court’s denial of their “motion for dismissal at the close of the defendants’ case and after the close of all the evidence.” Defendants’ motion for an involuntary dismissal in an action tried by the court without a jury challenges the sufficiency of the plaintiffs’ evidence to establish the right to relief. Allen v. Hunting Club, 14 N.C. App. 697, 189 S.E. 2d 532 (1972); Wells v. Insurance Co., 10 N.C. App. 584, 179 S.E. 2d 806 (1971). In this action for the recovery of land and for trespass thereon, plaintiffs’ allegations as to their title and trespass by the defendants were denied. Plaintiffs’ burden then became to establish both ownership in themselves and trespass by the dé-fendants. Midgett v. Midgett, 5 N.C. App. 74, 168 S.E. 2d 53 (1969), cert. denied, 275 N.C. 595 (1969). With respect to ownership of the land, the burden is upon the plaintiffs to establish title good against the whole world or against the defendants by estoppel. Walker v. Story, 253 N.C. 59, 116 S.E. 2d 147 (1960); Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142 (1889). In an action to recover land, a prima facie showing of title is made when the plaintiff connects his title [220] and defendant’s title to the land in controversy with a common .source and shows in himself a better title from that source. Mobley v. Griffin, supra. In support of their claim, plaintiffs introduced into evidence, without objection, the following: a deed from T. B. Koonce and wife to Fred Newell and wife, dated 4 September 1941 (exhibit 1); a warranty deed from Fred New-ell and wife to Matthew Hunter dated 25 May 1953 (exhibit 2); a warranty deed from Fred Newell and wife to Matthew Hunter and wife dated 26 March 1955 (exhibit 3); a warranty deed from Matthew Hunter and wife to Kirby D. Thompson and wife dated 3 February 1967 (exhibit 4); a warranty deed from Fred Newell and wife to Terrell C. Hayes and wife dated 17 February 1970 (exhibit 5); map showing property contentions in Thompson v. Hayes prepared 14 February 1972 by Sam J. Morris, Jr., court appointed surveyor (exhibit 6); survey sketch of the property of Kirby Thompson prepared by L. T. Mercer, R. S., 30 September 1966 (exhibit 7); a plat prepared by Alonzo James Davis III, Reg. Sur., of Terrell C. Hayes’ property dated 3 July 1970 from survey by A. D. Hicks (exhibit 8); a survey of the Hayes’ property prepared by R. W. Craft, 12 November 1969 (exhibit 9). Sam J. Morris, Jr., the court appointed surveyor, testified that he “prepared a map showing the contentions of the parties” (exhibit 6). The evidence tends to show that Morris prepared exhibit 6 from an actual survey made by him of the premises and that when he made the survey he had available for use exhibits 1-5 and 7-9. We are of the opinion and so hold that when exhibits 1-9 and the testimony of the court appointed surveyor are considered together, the evidence is sufficient to connect the title of the land claimed by the plaintiffs and defendants, which includes the land in controversy, to Fred Newell and wife, Bettie Newell, and to show in plaintiffs better title to the land in controversy from that common source. Furthermore, by the testimony of the court appointed surveyor and Matthew Hunter, plaintiffs offered evidence tending to show that the defendants’ fish market and two trailers were wholly or partially located on the land in controversy. The evidence was sufficient to establish plaintiffs’ claim for relief, and defendants’ motion for involuntary dismissal was properly denied. By their fifth assignment of error, defendants attempt to challenge the sufficiency of the evidence to support findings of fact numbered 9, 10 and 11. Exception No. 5 appears in the [221] record as an exception to the judgment. Findings of fact to which no exceptions are taken are deemed supported by competent evidence. McWhirter v. Downs, 8 N.C. App. 50, 173 S.E. 2d 587 (1970); 1 Strong, N. C. Index 2d, Appeal and Error § 28. Moreover, the evidence in the record, which we hold was sufficient to establish plaintiffs’ claim for relief, will also support the material findings of fact. Conflicts in the evidence were resolved by the findings of fact made by the judge. The facts found support the conclusions of law which in turn support the judgment which is Affirmed. Judges Vaughn and Graham concur.