Mobley v. Griffin

• Decision Date: 28 October 1889
• Citation: 10 S.E. 142,104 N.C. 112
• Parties: MOBLEY v. GRIFFIN.
• Court: North Carolina Supreme Court

10 S.E. 142

104 N.C. 112

MOBLEY v. GRIFFIN.

Supreme Court of North Carolina

October 28, 1889

This was a civil action, for the recovery of land, tried before CONNOR, J., and a jury, at the March term, 1889, of the superior court of Martin county. The plaintiff claimed title to a tract of land described in the complaint, and alleged that the defendant was in the wrongful possession thereof. The defendant E. W. Griffin disclaimed title thereto, and the defendant D. T. Waters denied the plaintiff's title to said land, and the wrongful possession thereof. The plaintiff, for the purpose of showing title in himself introduced -- First, the will of Martin Griffin, dated April 1, 1796, duly admitted to probate; second, the will of Edward Griffin, dated October 18, 1843, admitted to probate at the July term, 1856, of the court of pleas and quarter sessions of Martin county, devising the land in controversy to Ely H Brewer. The plaintiff showed the death of Ely H. Brewer, and that Mary Brewer was his sole heir at law, and as such entered into the possession of said land. The plaintiff next showed in evidence a judgment in the superior court of Martin county, dated December 11, 1878, for the sum of $30.10, with interest thereon from the 28th day of September, 1878, and costs, in an action, wherein McG. Mobley, the present plaintiff, was plaintiff, and the said Mary Brewer was defendant; that an execution issued on said judgment December 26, 1878, to the sheriff of Martin county; that said execution was returned with the following indorsements:

"Levied this execution, on Mary Brewer's (now Mary Terry) interest in the tract of land whereon she now lives adjoining the lands of H. C. Hardison and others, containing one hundred and twenty-four acres, more or less. Dec. 31 1878. [Signed] W. J. HARDISON, Sheriff."

"I duly advertised the land levied on, according to law, and sold the same for cash, before the court-house door in the town of Williamston, on the 3d day of February, 1879, when and where McG. Mobley became the last and highest bidder, in the sum of thirty-six dollars. After deducting the court costs and my commissions, I apply to this execution thirty and 10-100 dollars, which satisfies the same, and there is still in my hands the sum of forty cents. This the 3d day of February, 1879. [Signed] W. J. HARDISON, Sheriff."

The plaintiff then showed, in evidence, a deed from W. J Hardison, sheriff, to himself, dated February 3, 1879, and duly recorded. It was in evidence, and admitted to be true, that the said Mary Brewer, who had, after the judgment, intermarried with one George Terry, had at the time of the levy and sale no other property; that she removed to the county of Washington, and died, since the institution of this action. The defendant demurred to the evidence, and contended that the plaintiff could not recover, for that no homestead had been allotted to the defendant in the execution, Mary Brewer; and that the sale by the sheriff was void, and passed no title to the plaintiff to said land. Upon an intimation by the court that the sale was void, for the reason assigned, and that, therefore, the plaintiff could not recover, he submitted to a nonsuit, and appealed.

Plaintiff in ejectment, who bases his title on a sheriff's deed, cannot recover, if the execution debtor had no other property, and no homestead was allotted.

James E. Moore, for appellant.

AVERY, J., (after stating the facts as above.)

The general rule is that the burden is on the plaintiff in the trial of actions for the possession of land, as in the old action of ejectment, to either prove a title good against the whole world, or good against the defendant by estoppel. Taylor v. Gooch, 3 Jones, (N. C.) 467; Kitchen v. Wilson, 80 N.C. 191. The plaintiff may safely rest his case upon showing such facts and such evidences of title as would establish his right to recover, if no further testimony were offered. This prima facie showing of title may be made by either of several methods. Sedg. & W. Tr. Title Land, § 801; Conwell v. Mann, 100 N.C. 234, 6 S.E Rep. 782; Malone, Real Prop. Tr. 83. (1) He may offer a connected chain of title, or a grant direct from the state to himself. (2) Without exhibiting any grant from the state, he may show continuous and adverse possession of the land in controversy under color of title in himself and those under whom he claims for 21 years before the action was brought. Graham v. Houston, 4 Dev. 232; Christenbury v. King, 85 N.C. 229. (3) He may show title out of the state by offering a grant to a stranger without connecting himself with it, and then offer proof of continuous possession under color of title in himself and those under whom he claims for seven years before the action was brought. Blair v. Miller, 2 Dev. 407; Christenbury v. King, supra; Isler v. Dewey, 84 N.C. 345. (4) He may show, as against the state, possession under known and visible boundaries for 30 years, or, as against individuals, for 20 years before the action was brought. Sections 139, 144, Code N.C. (5) He can prove title by estoppel, as by showing that the defendant was his tenant, or derived his title through his tenant, when the action was brought, Id. § 147; Conwell v. Mann, supra; Melvin v. Waddell, 75 N.C. 361. (6) He may connect the defendant with a common source of title, and ...