Millikin v. Sessoms

• Decision Date: 09 May 1917
• Docket Number: 416.
• Citation: 92 S.E. 359,173 N.C. 723
• Parties: MILLIKIN ET AL. v. SESSOMS ET AL.
• Court: North Carolina Supreme Court

92 S.E. 359

173 N.C. 723

MILLIKIN ET AL. v. SESSOMS ET AL.

No. 416.

Supreme Court of North Carolina

May 9, 1917

Appeal from Superior Court, Richmond County; Cline, Judge.

Ejectment by D. C. Millikin and others against R. H. Sessoms and others. Judgment for plaintiffs, and defendants appeal. No error.

The plaintiff cannot recover more land than the evidence shows defendants have in their possession.

Civil action tried upon this issue:

Are the plaintiffs the owners and entitled to the possession of the land designated on the court map as included within the boundaries from "T" to the point marked "stake old gum witness," and thence to the edge of Mark's creek, and thence down Mark's creek to its interception with the line from "II" to "GG," and then to "GG," and thence towards "Q" to interception of the line from "N" to "T," and thence to "T"? Answer: Yes.

The following is a map of the land in controversy:

(Image Omitted)

Russell & Weatherspoon, of Laurinburg, and Walter R. Jones, of Rockingham, for appellants.

Cox & Dunn, of Laurinburg, for appellees.

PER CURIAM.

The defendants in apt time requested the court to submit the following issue to the jury: Are the plaintiffs the owners and entitled to the possession of the lands designated on the court map as included within the boundaries from "S" to the point marked "GG," thence toward "Q" to its interception of line from "N" to "S," and thence to "S"? The court declined to submit the issue, and the defendants except.

It is admitted that the issue submitted by the court covers all the land in controversy between the plaintiffs and the defendants. It is immaterial that the issue covers more land than is in controversy. In order to recover in an action of ejectment, the burden is upon the plaintiffs to show by affirmative evidence title to the land in controversy as well as that the defendants are in possession of some part thereof. The plaintiffs cannot recover from the defendants any more land than the evidence shows the defendants have in their possession. These are familiar rules governing actions of ejectment.

Under the issues submitted to the jury either party to the action could submit pertinent evidence tending to prove the title and possession of the land in controversy. The test to be applied to the issues is: Did the issues submitted afford the parties opportunity to introduce all pertinent evidence and apply it fairly? Black v. Black, 110 N.C. 398, 14 S.E. 971; Pretzfelder v. Insurance Co., 123 N.C 164, 31 S.E. 470, 44 L. R. A. 424.

The framing of issues must necessarily be left to the sound discretion of the trial judge, and generally they will not be interfered with by this court if it appears that upon such issues as have been submitted each party is given opportunity to present their evidence and the law applicable thereto to the jury, provided, of course, that the issues are such as are raised by the pleadings. Cuthburtson v. Insurance Co., 96 N.C. 480, 2 S.E. 258.

It appears from the evidence in this case that the plaintiffs claim as the devisees of one Pros. D. Millikin, and that the defendants claim as the heirs at law of one William B. Smith. These two ancestors were adjoining...