Brown v. King

• Decision Date: 17 November 1890
• Citation: 12 S.E. 137,107 N.C. 313
• Parties: BROWN v. KING et al.
• Court: North Carolina Supreme Court

12 S.E. 137

107 N.C. 313

BROWN v. KING et al.

Supreme Court of North Carolina

November 17, 1890

This was a civil action, for the recovery of a tract of land tried before BOYKIN, J., and a jury, at fall term, 1889, of Jones county superior court. The plaintiff introduced a deed describing three several tracts of land from John Martin Franks to Isaac Brown, Sr., dated in 1832. There was evidence tending to show that the plaintiff chipped boxes on one of the said tracts set out in the said deed for seven or eight years immediately preceding the late civil war; that said tract was exclusively woods land, and was in no way used or occupied during the said war, nor afterwards, until about six or seven years before the commencement of this action, since which time it has been in the possession of the plaintiff. The boundaries of neither of the said three tracts were the same as those set out in the complaint, and there was no evidence tending to identify any of the tracts described in the said deed with that described in the complaint, except one of the witnesses testified he had heard one of the tracts mentioned in the deed was the land in dispute between the plaintiff and the defendants, but said he did not know but one of the lines of said tracts. The plaintiff, who was the last witness examined, testified that, at the time of the commencement of this action, he was in possession of the land described in the complaint. When the plaintiff rested his case, the counsel for the defendants arose and inquired of his honor if he understood the plaintiff to testify that he was in possession of the locus in quo at the time this action was commenced, and, receiving an affirmative answer from the court, the defendants announced they would not introduce any evidence. His honor directed the jury, if they believed the evidence, to return a verdict for the defendants. The jury found all issues in favor of the defendants. Some time after the verdict of the jury had been returned, and the judgment signed by his honor, counsel for the plaintiff moved to be allowed to take a nonsuit. Motion denied. Appeal by plaintiff.

Where plaintiff in ejectment went to the jury on all the issues in the case, without asking to correct his testimony that he is in possession, he is not entitled to a judgment of nonsuit after a verdict for defendant.

George Rountree, for appellant.

Manly & Guion, for appellees.

AVERY J., (after stating the facts as above.)

The plaintiff offered a deed from John Martin Franks to Isaac Brown, Sr., bearing date in the year 1832, and purporting to convey three tracts of land. The boundaries of the tract described in the complaint were not the same as those of any one of the three set out in the deed. A witness testified that he had heard that one of the tracts mentioned in the deed was the land in dispute between the plaintiff and the defendants, but that he, witness, did not know but one of the lines of said tracts. There was no testimony tending to show that the land in controversy was that described in the complaint, if the evidence of the witness could be considered as more than a scintilla of testimony to show the identity of the land in dispute with any tract mentioned in the deed introduced. But if it be admitted that the disputed territory described in the complaint is covered by the boundaries set out in the deed, the plaintiff offered no grant, and, in order to show title under color in himself prima facie, ought to have offered evidence tending to prove continuous adverse possession in himself, or those under whom he claims, or both, for 21 years of the time intervening between the execution of the deed to Isaac Brown, Sr., in 1832, and the date of bringing the action, exclusive of the time elapsing between May 20, 1861, and January 1, 1870, when the...