Blue Ridge Land Co. v. Floyd

• Decision Date: 17 May 1916
• Docket Number: 517.
• Citation: 88 S.E. 862,171 N.C. 543
• Parties: BLUE RIDGE LAND CO. v. FLOYD.
• Court: North Carolina Supreme Court

88 S.E. 862

171 N.C. 543

BLUE RIDGE LAND CO. v. FLOYD.

No. 517.

Supreme Court of North Carolina

May 17, 1916

Appeal from Superior Court, Henderson County; Harding, Judge.

Action by the Blue Ridge Land Company against William Floyd. Judgment for the defendant, and plaintiff appeals. New trial ordered.

In an action to recover land claimed by defendant under color of title and adverse possession, use of the word "satisfy" in charging on burden of proof and weight of evidence held not improper.

This action was brought to recover land. Plaintiffs showed a complete chain of title from the state by grant and mesne conveyances. Defendant relied on adverse possession under color of title. The court charged the jury as follows:

"If the defendant has satisfied you by the evidence in this case--he is not required to satisfy you by the greater weight of the evidence or beyond a reasonable doubt, but to satisfy you upon the evidence in his case; the burden being upon the plaintiff to satisfy you by the greater weight of the evidence of its right to recover. The burden is upon the defendant to satisfy you by the evidence, not by the greater weight, nor beyond a reasonable doubt, but to satisfy you; and if the defendant has satisfied you by the evidence in this case that George Thomas in 1872, under a deed from Solomon Jones, entered upon the land in controversy, and the deed covered the land, and that he held it in his possession openly, notoriously, adversely and continuously, for a period of seven years, then it would be your duty to answer the first issue, 'No.' "

The jury returned a verdict for the defendant, and plaintiff appealed from the judgment thereon. See case on former appeal, 167 N.C. 686, 83 S.E. 687.

McNinch & Justice, of Charlotte, and Smith & Shipman, of Hendersonville, for appellant.

Staton & Rector and O. V. F. Blythe, all of Hendersonville, for appellee.

WALKER J.

When this case was before us at a former term, it appeared, as it does in this record, that plaintiff claimed under a grant and mesne conveyances which vested the title and right of possession in him. This entitled him to recover unless defendant could show that there was an outstanding paramount title or that he had in some way acquired title. He undertook to do this by showing color of title and adverse possession under it, which he says was sufficient to ripen his title. But this was an independent defense, affirmative in its nature, and imposed upon the defendant the burden of proof to establish it, and this burden required that he should satisfy the jury of the truth of his defense by the greater weight of the testimony. We said by Justice Hoke in the former opinion (167 N.C. at page 688, 83 S.E. at page 688):

"On the facts as they are now presented, in order to defeat the title vested in plaintiff company under its grant and written deeds, it was necessary for defendants to show seven years' continuous possession in the assertion of ownership under the Thomas claim. The evidence, as stated, not showing or tending to show that the occupation of the third persons, other than Cook, was in any way connected with this claim, the presumption is that they held under the true title, and we are of opinion that plaintiff was entitled to the instruction prayed for by him: 'That there was no evidence that Abe Shipman or any other occupant of the Payne House, except Cook, was in possession of the land in controversy at any time, claiming the same under George Thomas.' "

It will be seen therefore that the burden was placed upon the defendant to prove his adverse possession under color. The court charged at the last trial, and correctly, that the burden, in the first instance, was upon the plaintiff to satisfy the jury by the greater weight of the evidence that it is entitled to recover; but we are of the opinion that there was error in the other part of the charge to the effect that the defendant, who attempted to show an independent title, was not required to do so by a preponderance of the evidence. The statute (Revisal, § 386) places the burden upon the defendant to show his color and adverse possession, for otherwise his occupation "shall be deemed to have been under, and in subordination to, the legal title." Bryan v. Spivey, 109 N.C. 57, 13 S.E. 766; Monk v. Wilmington, 137 N.C. 322, 49 S.E. 345; Bland v. Beasley, 145 N.C. 168, 58 S.E. 993; Stewart v. McCormick, 161 N.C. 625, 77 S.E. 761; Ruffin v. Overby, 105 N.C. 78, 11 S.E. 251.

In Bryan v. Spivey, supra, it is said that, if the plaintiffs have shown that they had the title, the defendants aver that "they are protected by their adverse possession under color of title for seven years. This defense is an affirmative one, and the onus probandi is, of course, upon the defendants to establish it"--citing Ruffin v. Overby, supra.

The case of Chaffin v. Manufacturing Co., 135 N.C. 95 47 S.E. 226, relied on by the defendant, does not sustain his position. The question there was whether the use of the word "satisfied," in an...