Mccaskill v. Walker

• Decision Date: 25 March 1908
• Citation: 61 S.E. 46,147 N.C. 195
• Parties: McCASKILL. v. WALKER et al.
• Court: North Carolina Supreme Court

147 N.C. 195

61 S.E. 46

McCASKILL.

v.WALKER et al.

Supreme Court of North Carolina.

March 25, 1908.

1. Ejectment—Title to Support Action-Evidence.

A plaintiff, suing for the possession of land, who showed title in the grantee of the state. could establish his case by connecting himself with such title, and relying on the presumption raised by Revisal 1905. § 386, that he was possessed of the land within the time prescribed liv section 383 for the bringing of actions to recover real estate, or on failing to connect himself with such title by showing an adverse possession in himself or those under whom he claimed for a period sufficient to give him title, without aid from the statutory presumption or on failing to show adverse possession by showing that he and defendant claimed under a common source and that defendant was estopped from denying title in the common source.

2. Evidence—Pleadings as Evidence.

A plaintiff, offering in evidence a part of a paragraph of an answer, cannot so disconnect the words of the pleader as to destroy the sense in which they were used, and, where there is but one proposition stated, it should not be separated, for the language used by a party in a pleading must be given in evidence in such a way as to enable the jury to see what by reasonable interpretation he intended to and did say.

3. Ejectment—Burden of Proof.

Where, in an action for the possession of land, defendants denied plaintiffs' ownership, plaintiff had the burden of proving title.

4. Evidence—Admissions in Pleadings.

Where, in an action for the possession of land, defendants denied plaintiffs' ownership, and then set forth an affirmative defense containing admissions of such a character as to aid plaintiff in making out his title, plaintiff was entitled to put such admissions in evidence, provided he did not discard such parts of the language, and did not cut up the sentence in such a manner as to destroy the sense in which the admission was made.

5. Ejectment—Pleadings—Admissions.

In an action begun in 1901 for the possession of land, plaintiff claimed under a deed executed in 1869 by the deceased ancestor of defendants, and the answer alleged that the deed was fraudulent, and that "for a long time prior to the date of" the conveyance, and continually from that time up to the present, the ancestor of defendants, and defendants, since his death, had been in the adverse possession of the land, to the exclusion of plaintiff and those under whom he claimed. The deed to the ancestor was executed in 1853, and the ancestor died in 1871. Held, that the quoted clause in the answer was not an admission that defendants claimed under the ancestor; for, if the ancestor ousted the true owner and remained in adverse possession until he acquired title by lapse of time, his heirs on his death would hold title by descent. while, if he ousted the owner and died before his disseisin ripened into title, and defendants then went into the adverse possession and remained until either by their possession or by tacking that of their ancestor they acquired title, it could not be said that they claimed under the ancestor.

6. Trial—Reception of Evidence—Necessity of Proof—Matters of Record in Case.

Where issuable allegations are made in the complaint and admitted in the answer, it is not necessary to introduce the pleading.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, § 87.]

7. Same.

In an action for the possession of land, plaintiff claimed under a deed executed by the deceased ancestor of defendants, and the answer alleged that the deed was fraudulent, and that for a long time before the date of the conveyance, and continually from that time to the present, the ancestor, and on his death, defendants, had been in the adverse possession of the land. Held, that the affirmative matters in the answer were independent of and collateral to the issues raised by the complaint and denied in the answer, and plaintiff was first called on to make out his case to the extent of showing a prima facie title, and he could avail himself, for such purpose, of the averments in the answer of new matter only by introducing it in evidence without separating the new matter so as to destroy the sense of the admission.

Appeal from Superior Court, Robeson County; E. B. Jones, Judge.

Action by J. C. McCaskill against Sarah E. Walker and others. From a judgment of nonsuit, plaintiff appeals. Affirmed.

See 58 S. E. 1073.

Plaintiffs allege that they are the owners and entitled to the possession of the locus in quo, and that defendants are in the wrongful possession thereof, and they demand judgment. Defendants deny each allegation of the complaint, and for further answer say that the defendants are advised and believe and therefore aver that the plaintiffs claim title to the lands described in the complaint under and by virtue of an alleged conveyance purporting to have been executed by John Walker and wife to one H. J. McLean, bearing date of June 2, 1869, and purporting to have been recorded in Book JJJ, p. 257, office of register of deeds of Robeson county, and the defendants allege that the said alleged paper writing was never, in fact, executed and delivered by the said John Walker to be defendant H. J. McLean, or to any other person for him, and that the same was wholly without consideration, and that the said alleged paper writing, together with the attempted registration thereof in the office of register of deeds of Robeson county, is fraudulent and void, and of no legal effect as a conveyance; that for a long time before the date of the said alleged conveyance, and continually from that time up to the present, John Walker, the ancestor of defendants, and these defendants, his widow and heirs at law, since his death, have been in the open, notorious, and adverse possession of all of said lands, under known and visible lines and boundaries, using the same to the exclusion of the plaintiffs, and those under whom they claim, and all other persons. Plaintiffs introduced a grant from the state to Jacob Alford, dated October 3, 1765; deed from James McNeill to McDuffie, January 11, 1806; deed from McDuffie to John Walker, Sr., October 28, 1811; deed from John Walker, Sr., to John Walker, Jr., March 11, 1853; deed from John Walker, Jr., to Hector J. McLean, June 2, 1869. Hector McLean died intestate December, 1870, leaving plaintiff Lola Wright and three others his heirs at law. Plaintiff McCaskill introduced deeds from them to himself for their individual interests. All of the deeds were duly recorded. The summons issued August 29, 1901. The plaintiffs proposed to offer in evidence so much of the said paragraph as stated that for many years before his death John Walker had been in possession of the land. The defendants objected. Thereupon the court requested plaintiff's counsel to indicate just what parts or words of the paragraph they wished to offer, and the court would then rule upon the matter. Counsel declined to do this, stating that the sentence was so involved that they could not offer connected words that would make sense. The court then proposed to allow the plaintiffs to offer the entire paragraph, or such connected words as would make sense, if plaintiffs would indicate what words they desired to offer. This plaintiffs declined to do, forthe reason above stated. The plaintiffs then proposed to offer in evidence so much of paragraph 10 of the amended answer...