Brite v. Lynch, 21
| Decision Date | 27 February 1952 |
| Docket Number | No. 21,21 |
| Citation | 235 N.C. 182,69 S.E.2d 169 |
| Parties | BRITE et al. v. LYNCH et al. |
| Court | North Carolina Supreme Court |
Worth & Horner, Elizabeth City, for plaintiffs, appellants.
J. Henry LeRoy, John H. Hall, Elizabeth City, for defendants, appellees.
The described land was conveyed by deed in 1861 to David Pritchard Brite. In 1865 David Pritchard Brite married Cordelia, widow of Elias Carver, and mother of Magnora, then a child two years old. About 1867 there was born to David Pritchard and Cordelia a son named Joseph R. Brite. David Pritchard Brite died in 1872. Joseph R. Brite died intestate and without issue in 1935.
It is apparent that if David Pritchard Brite's title to this land had ripened by adverse possession under color of title at the time of his death in 1872 the land descended to his heir, Joseph R. Brite; and upon the death of Joseph R. Brite, without issue, the title vested in his collateral heirs of the blood of the ancestor David Pritchard Brite, who are represented by the plaintiffs in this action. Canons of Descent Rule 4.
But, on the other hand, if David Pritchard Brite did not thus acquire title and was not seized of the land at the time of his death, and Joseph R. Brite thereafter acquired title to it by adverse possession or otherwise, he became a new propositus, and upon his death without issue the land would pass to his half-sister Magnora, now Mrs. McDonald, the mother and grantor of the defendants. Canons of Descent Rule 6.
The burden was on the plaintiffs to recover if at all upon the strength of their own title, and in order to establish that title it was incumbent upon them to show by the greater weight of the evidence that David Pritchard Brite entered into possession of the land under the deed of 1861, and held possession thereof adversely for the statutory period.
The plaintiffs' only witness on this point was Magnora McDonald, now 88 years of age, who testified she was two years old when her mother Cordelia married David Pritchard Brite, and she was 9 when her step-father died. She said, 'When I first knew it (the land) it was all in woods.' She also said, 'My step-father cultivated a small part of this land until the time of his death.' The defendants claimed title by adverse possession under color of a deed from Magnora McDonald, dated October 2, 1937.
The court submitted two issues: The first issue was answered 'No,' and the second issue was unanswered.
On the first issue the court charged the jury as follows: ...
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