Batts v. Batts
| Decision Date | 12 March 1901 |
| Citation | 38 S.E. 132,128 N.C. 21 |
| Parties | BATTS . v. BATTS. |
| Court | North Carolina Supreme Court |
EJECTMENT—EVIDENCE—EXCEPTION IN DEED —BURDEN OF PROOF.
Where the defendant conveyed to plaintiff 500 acres of land, with the exception of 73 acres, and surrendered possession of all but 3 acres, it was not error for the court to refuse to charge, in ejectment for the 3 acres, that the burden was on the plaintiff to show that the 3 acres were outside the exception mentioned in the deed, as it was for defendant to prove that the 3 acres were within the exception mentioned.
Appeal from superior court, Wilson county; Starbuck, Judge.
Action by D. L. Batts against J. B. Batts. From a judgment in favor of the plaintiff, the defendant appeals. Affirmed.
H. G. Connor & Son, for appellee.
This action is for the possession of a lot of land of 3 acres upon which there are valuable improvements. On the trial the plaintiff offered in evidence a deed to himself from the defendant, in which was conveyed a tract of 500 acres, with an exception of 73 acres in the southwest corner, and which 73 acres are well described by metes and bounds. There was also evidence on the part of the plaintiff locating the 500-acre tract, and further evidence that the 3-acre lot was included in the boundaries of the 500-acre tract, and that the defendant was in possession of the 3-acre lot and premises. The defendant offered no evidence, but requested the court to charge the jury that the burden was on the plaintiff to show that the locus in quo was outside the exception mentioned in the de«d. The instruction was refused, and the jury were charged that if they were satisfied, by a preponderance of the evidence, that the lot of 3 acres was a part of, and included within the boundaries of, the 500-acre tract, then the burden was on the defendant to show by a preponderance of the evidence that the 3-acre lot was included in the exception. The defendant excepted, and appealed to this court.
The only question presented is, upon whom does the onus lie,--upon the plaintiff or upon the defendant? It is upon the defendant. The plaintiff's deed conveyed and covered the whole 500 acres; 73 acres were excepted. The defendant insists that the lot of 3 acres is a part of the exception, and certainly that is an affirmative, and he must prove it. McCormick v. Monroe, 46 N. C. 13; Gudger v. Hensley, 82 N. C. 481; Iron Co. v. Edwards, 110 N. C. 353, 14 S. E. 861. No error.
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