Collins v. Swanson

• Decision Date: 26 October 1897
• Citation: 28 S.E. 65,121 N.C. 67
• Parties: COLLINS et al. v. SWANSON.
• Court: North Carolina Supreme Court

28 S.E. 65

121 N.C. 67

COLLINS et al. v. SWANSON.

Supreme Court of North Carolina

October 26, 1897

Appeal from superior court, Franklin county; Timberlake, Judge.

Action by J. G. Collins and others against W. H. Swanson. In deference to the intimation of the court, on the production of their evidence, plaintiffs submitted to a nonsuit; and from the judgment accordingly rendered, they appeal. Nonsuit set aside.

In an action for possession of real property, where defendant set up an alleged purchase by his deceased ancestor from the deceased ancestor of plaintiffs, and quiet and undisturbed possession thereunder for more than 20 years, and admitted that plaintiffs were the heirs at law of their common predecessor in title, who had died within 15 years prior to the bringing of such action, plaintiffs produced evidence that defendant had not been in possession for 20 years, and rested. Held error to nonsuit plaintiffs, as, in the absence of some valid alienation, the title was cast on them, and the burden shifted to defendant to show a better title, either by a valid conveyance from the common source to himself or his ancestor, or by making good his plea of the statute.

F. S Spruill and J. B. Batchelor, for appellants.

C. M Cooke, for appellee.

DOUGLAS J.

This is an action in the nature of ejectment, brought by the plaintiffs (appellants), as heirs at law of Munford Collins to recover certain lands in the alleged possession of the defendant. The defendant, in his answer, denies the material allegations of the complaint, and pleads the statute of limitations, as having been in quiet and uninterrupted possession for more than 20 years under known and visible boundaries. In his amended answer he further says "that, in 1863, J. R. Swanson, the father of the defendant, and who has since died, intestate, purchased the land in controversy of Munford Collins, for the price of $100, which he paid him, and that the deed which he executed has been lost or mislaid, if any was made." Upon the trial it was admitted "that the plaintiffs are the heirs at law of Munford Collins, who died in February, 1881, and that this action was brought to the October term, 1895, of Franklin superior court." The plaintiffs introduced testimony tending to show, among other things, that the defendant had not been in possession of the land for 20 years. Upon intimation of his honor that they could not recover upon their own testimony, the plaintiffs submitted to a nonsuit, and appealed.

In this intimation of his honor, we think, there was substantial error. The defendant set up no title except the purchase of the land by his ancestor from Munford Collins. He is therefore estopped from denying the title of Munford Collins. Ives v. Sawyer, 20 N.C. 51; Johnson v Watts, 46 N.C. 231; Thomas v. Kelly, Id. 375; Feimster v. McRorie, Id. 547; Copeland v. Sauls, Id. 70; Gilliam v. Byrd, 30 N.C. 280. All that the plaintiffs are required to do in order that they may recover is to show a better title from the common source. Gilliam v. Byrd, supra; Caldwell v. Neely, 81 N.C. 114; Spivey v. Jones, 82 N.C. 179; Christenbury v. King, 85 N.C. 229; Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142; Bonds v. Smith, 106 N.C. 553, 11 S.E. 322. The defendant, being...