DeHart v. Jenkins

• Decision Date: 17 March 1937
• Docket Number: 18.
• Citation: 190 S.E. 218,211 N.C. 314
• Parties: DeHART et al. v. JENKINS.
• Court: North Carolina Supreme Court

190 S.E. 218

211 N.C. 314

DeHART et al. v. JENKINS.

No. 18.

Supreme Court of North Carolina

March 17, 1937

Appeal from Superior Court, Swain County; W. F. Harding, Judge.

Action by Coburn DeHart and others against W. T. Jenkins. From an adverse decision, defendant appeals.

New trial.

Rule as to burden of proof constitutes substantial right, and erroneous placing of burden is reversible error.

Moody & Moody, of Murphy, for appellant.

Black & Whitaker and Edwards & Leatherwood, all of Bryson City, for appellees.

DEVIN Justice.

This was an action to recover the possession of certain lands upon allegations of title and wrongful possession. The title to two parcels of land was involved.

Among the material issues submitted to the jury were the following:

"1. Is the black oak corner of Sec. No. 66 located at the point on the Court Map at figure 4, as testified to by witness Bill Grant, or at the figure 9, as testified to by the defendant, William Jenkins?

2. Is the M. L. Dills white oak corner, described in plaintiffs' second boundary, located at the white oak stump indicated at figure 12 on the Court Map, as testified to by the witness, Epp Jenkins, or at the point marked dogwood on the Court Map as testified to by defendant's witness, Texas Wiggins, and the defendant?"

The jury answered the first issue "Yes, No. 4," and the second "Yes, No. 12."

Appellant's principal assignments of error are addressed to the form of these issues as being in the alternative and contrary to the rule stated in Emery v. Raleigh & G. R. Co., 102 N.C. 209, 9 S.E. 139, 11 Am.St.Rep. 727, and Carey v Carey, 108 N.C. 267, 12 S.E. 1038, and to the judge's charge upon these issues in respect to the burden of proof.

The court charged the jury on the first issue as follows:

"If the plaintiffs have satisfied you, gentlemen, by the evidence in this case and by its greater weight that the corner is at No. 4, then you will answer the issue 'Yes, No. 4,' if he has failed to so satisfy you, and the defendant has satisfied you it is at No. 9, that is by the greater weight of the evidence for the purpose of establishing the defendant's claim to the property, you would answer the issue, 'Yes, No. 9'."

And on the second issue: "The burden is on the plaintiff to satisfy you by the greater weight of the evidence that it is at No. 12, and if he has so satisfied you, then you will answer the issue, 'Yes, No. 12;' if the plaintiff has failed to satisfy you it is at 12, and the defendant has satisfied you by the greater weight of the evidence that it is at the dogwood, then you would answer it 'dogwood."'

The court further charged the jury that if they answered the first and second issues locating the corners at No. 4 and No. 12, they should thereupon answer the issues of title in favor of the plaintiffs.

The instructions given by the learned judge who presided over the trial below seem in conflict with the rule laid down in Boone v. Collins, 202 N.C. 12, 161 S.E. 543, 544. In that case it was said, Chief Justice Stacy speaking for the court: "The burden of establishing the true location of the boundary line was on the plaintiff. Hill v. Dalton, 140 N.C. 9, 52 S.E. 273. But this was inadvertently placed on both parties at the same time. Virginia-Carolina Power Co. v. Taylor, 194 N.C. 231, 139 S.E. 381. Similar instructions were held for error in Garris v. Harrington, 167 N.C. 86, 83 S.E. 253, and Tillotson v. Fulp, 172 N.C. 499, 90 S.E. 500. The burden of proving the affirmative of a single issue cannot rest on both sides at the same time. Carr v. Bizzell, 192 N.C. 212, 134 S.E. 462; Speas v. Merchants' Bank & Trust Co., 188 N.C. 524, 125 S.E. 398. The rule as to the burden of proof constitutes a substantial right, and its erroneous placing is reversible error. Skyland Hosiery Co. v. American Ry. Express Co., 184 N.C. 478, 114 S.E. 823."

While Boone v. Collins, supra, was...