Dill-cramer-truitt Corp. v. Downs

• Decision Date: 22 February 1928
• Docket Number: (No. 56.)
• Citation: 141 S.E. 570,195 N.C. 189
• Court: North Carolina Supreme Court
• Parties: DILL-CRAMER-TRUITT CORPORATION. v. DOWNS.

141 S.E. 570

(195 N.C. 189)

DILL-CRAMER-TRUITT CORPORATION.

v.DOWNS.

(No. 56.)

Supreme Court of North Carolina.

Feb. 22, 1928.

Appeal from Superior Court, Edgecombe County; Clayton Moore, Special Judge.

Action by the Dill-Cramer-Truitt Corporation against D. W. Downs. Judgment for defendant, and plaintiff appeals. New trial.

Civil action in ejectment and to enjoin the defendant from cutting timber on a certain tract of land described in the complaint. From a verdict and judgment in favor of defendant, the plaintiff appeals, assigning errors.

Henry C. Bourne, of Tarboro, for appellant.

George M. Fountain, of Tarboro, for appellee.

STACY, C. J. There are at least two exceptive assignments of error appearing on the record which make it necessary to remand the cause for another hearing.

The court instructed the jury, inter alia, that in the present action the burden was on the plaintiff to show (1) title out of the state, and (2) adverse possession for 7 years under color, or for 21 years without color. These instructions, as given, were erroneous.

In actions involving title to real property, where the state is not a party, other than in trials of protested entries laid for the purpose of obtaining grants, the title is conclu-sively presumed to be out of the state, and neither party is required to show such fact, though either may do so. C. S. § 426; Moore v. Miller, 179 N. C. 396, 102 S. E. 627; Pen-nell v. Brookshire, 193 N. C. 73, 136 S. E. 257.

And in actions between individual litigants, as here, when one claims title to land by adverse possession and shows such possession, (1) for 7 years under color, or (2) for 20 years without color, either showing is sufficient to establish title in this jurisdiction. C. S. § 428 and § 430; Virginia-Carolina Power Co. v. Taylor, 191 N. C. 329, 131 S. E. 646; Id., 194 N. C. 231, 139 S. E. 381.

For the errors, as indicated, a new trial must be awarded, and it is so ordered.

New trial.