Andrews v. Bruton

• Decision Date: 13 April 1955
• Docket Number: No. 378,378
• Citation: 86 S.E.2d 786,242 N.C. 93
• Parties: F. R. ANDREWS and Charlotte H. Andrews, v. Clay L. BRUTON.
• Court: North Carolina Supreme Court

Page 786

86 S.E.2d 786

242 N.C. 93

F. R. ANDREWS and Charlotte H. Andrews, v. Clay L. BRUTON.

No. 378

Supreme Court of North Carolina.

April 13, 1955

David H. Armstrong, Troy, for defendant-appellant.

Garland S. Garris, Troy, for plaintiffs-appellees.

BOBBITT, Justice.

A plaintiff must make out his case secundum allegata. Barnes v. Caulbourne, 240 N.C. 721, 83 S.E.2d 898. There can be no recovery except on the case made by his pleadings. Collas v. Regan, 240 N.C. 472, 82 S.E.2d 215. Proof without allegation is no better than allegation without proof. Messick v. Turnage, 240 N.C. 625, 83 S.E.2d 654. When there is a material variance between allegation and proof, motion for judgment of nonsuit will be allowed. Suggs v. Braxton, 227 N.C. 50, 40 S.E.2d 470.

The subject matter of which the court had jurisdiction extended only to the tract of land as described in plaintiffs' allegations. Deans v. Deans, 241 N.C. 1, 84 S.E.2d 321, and cases cited.

It will be readily observed that the tract of land described in plaintiffs' allegations, if located, would be triangular in shape. Plaintiffs made no attempt to locate their land in accordance with the calls alleged.

Plaintiffs undertook to establish ownership of Lot No. 3 in the division (1860) of the Edmund Andrews land, a quadrangular tract containing 35 acres, more or less. But plaintiffs' allegations do not describe said Lot No. 3, nor do they incorporate by reference a description thereof as set forth in any deed, map or land division. Finding of fact No. 1 was that the deeds under which plaintiffs claim convey to them 'the lands described in the complaint.' Hence, we refrain from discussing either the competency or the sufficiency of the evidence offered by plaintiffs for the purpose of locating (1) the boundaries of the Edmund Andrews tract, (2) the boundaries of said Lot No. 3, and (3) the boundaries of the area where the timber was cut within said Lot No. 3.

Both for lack of jurisdiction and for material variance between allegation and proof, defendant's motion for judgment of nonsuit should have been allowed.

It seems appropriate to call attention to certain well-established rules. Their allegations as to title having been denied, it was incumbent upon plaintiffs to establish both ownership and trespass. Norman v. Williams, 241 N.C. 732, 86 S.E.2d 593, and cases cited. Whether relying upon their deeds as proof of title or of color of title, they were required to locate the land by fitting the description in the deeds to the earth's surface. G.S. § 8-39; Locklear v. Oxendine, 233 N.C. 710, 65 S.E.2d 673; Parsons v. John L. Roper Lumber Co., 214 N.C. 459, 199 S.E. 626. In the absence of title or color of title, they were required to establish the known and visible lines and boundaries of the land actually occupied for the statutory period. Carswell v. Town of Morganton, 236 N.C. 375, 72 S.E.2d 748.

It is well to note that no issue of title was involved in Newkirk v. Porter, 240 N.C. 296, 82 S.E.2d 74. The sole issue was the location of the true dividing line between adjoining owners. Such is not the case here. Here defendant explicitly denied plaintiffs' title.

Attention is directed to the fact that plaintiff sued for the value of the timber alleged to have been converted by defendant to his own use. However, the damages awarded by the judgment are based on the difference in value of the 35-acre tract, being said Lot No. 3, before and after the alleged trespass. When one wrongfully enters upon the land of another and cuts trees thereon, the owner of the land has an election of remedies. Williams v. Elm City Lumber Co., 154 N.C. 306, 70 S.E. 631; Brady v. Brady, 161 N.C. 324, 77 S.E. 235, 44 L.R.A.,N.S., 279; Richmond Cedar Works v. J. L. Roper Lumber Co., 161 N.C. 603, 77 S.E. 770; Blevens v. Kitchen Lumber Co., 207 N.C. 144, 176 S.E. 262; Bunting v. Henderson, 220 N.C. 194, 16 S.E.2d 836. Damages recoverable by plaintiffs, if any, would have to be determined on the basis therefor as alleged. Nebel v. Nebel, 241 N.C. 491, 85 S.E.2d 876; Dobias v. White, 240 N.C. 680, 83 S.E.2d 785.

Plaintiffs alleged that defendant owned land adjoining their lands on the north. Defendant admitted that he owned the land adjoining on the north the land claimed by plaintiffs but denied plaintiffs' title.

Defendant assigns as error the refusal of the court to enter judgment establishing defendant's ownership of the tract of land described in the answer. He bases his position upon finding of fact No. 6, to which no exception was taken, viz.: 'According to the Clark survey in this...