Moore v. McClain
| Decision Date | 22 May 1906 |
| Parties | MOORE v. McCLAIN. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Polk County; Peebles, Judge.
Action by Ellen O. Moore against Thomas McClain. From a judgment for plaintiff, defendant appeals. Reversed.
Where in ejectment, plaintiff showed a prima facie title, such fact did not shift the burden of proof on the issue of title but imposed on defendants the duty of going forward with their evidence and of showing a superior title.
The following is a copy of the plat referred to in opinion:
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Plaintiff sued in ejectment, alleging title to a tract of land described in the complaint by metes and bounds; that defendants were in the wrongful possession thereof. She also alleged that the land was heavily timbered, and that the defendants were cutting and removing valuable timber therefrom, praying for an injunction restraining defendants etc. A restraining order was issued, and upon the return day continued to the hearing. Defendants denied each allegation of the complaint. Issues were submitted to the jury directed to the inquiry of title, possession and damages. Plaintiff introduced a grant from the state bearing date November 28 1809, followed by a chain of title. She then introduced testimony tending to locate the boundaries of the grant, one Edwards testifying that beginning at A and running to B he found marks along the line, which appeared to be 10 or 15 years old; passed a stone and pointers at B; found pointers at C and traced the line at the beginning. Plaintiff introduced one Joe Moore, who testified that he was 64 years old; was present when line was run; was about 17 years old. When they reached the stack corner, about 200 yards from the house, they sent witness to Daniel McClain's house after an ax and they cut into a tree and found marks in it. Witness saw the tree last year; some rocks there now, did not remember whether they put any down there or not. McClain's house was northwest from corner. John Matthews testified: That McClain wanted him to cut some boards when going east and he told me not to cut anything on the right--that was Moore's land; 25 years ago. Plaintiff rested. Defendants introduced a grant to John Hughes bearing date February 26, 1793, calling for "beginning at a Spanish oak on a hill on the north side of Green River" showed by the surveyor that he began at the Spanish oak at the point on the may marked 1, and run by course and distance to 2, thence to 3, thence to 4, and if the Spanish oak was at the beginning corner the course and distance would include the land in dispute. He testified in regard to the marks on the Spanish oak and that the second corner called for in defendant's grant was for a pine; that he found no pine at the end of the distance which gave out in a field, but that 3 or 4 yards beyond he found a stump. The second call in the grant by course and distance carried him to 3; that the call was by course and distance "to a stake in his (Hughes') own line"; that he, the surveyor, knew of no line at 3; that he made no inquiries as to where the Hughes line was; did not attempt to find it, was not asked to look for or locate it by either plaintiff or defendant. George Lynch testified that he was 56 years old, was raised at Dan McClain's on land inside of defendant's grant, as located by the surveyor; that he had known the Spanish oak corner which he pointed out to the surveyor, since he was a boy, and that it had at all times been known and recognized by McClain and the adjoining owners of land as the McClain beginning corner of the Hughes grant.
At the conclusion of the evidence the defendant's counsel asked the court in writing to charge the jury: "That there is no evidence as to the location of the Hughes line or tract of land at the time of the date of the John Hughes grant introduced by the defendant dated in 1793, and therefore, the call in said grant cannot control course and distance." This prayer was refused by the court, and defendant excepted. The court then charged the jury, that if they were satisfied that the plaintiff had located the calls of her grant and had been in possession of said boundary, as testified to by the witnesses, it would be their duty to answer the first issue "Yes," unless they found from the evidence that the defendants had located the John Hughes grant as claimed by them and as indicated on the map, and that, in passing upon the location of the Hughes' grant, they should take into consideration and be governed by the natural boundaries called for. That if they found the beginning to be at the Spanish oak, the next corner would be a pine, and if they could find a pine from the evidence they would go to it regardless of course and distance. The next call in the grant was course and distance, which would carry them to 3, if not controlled by natural boundaries; but, as the call from 2 to 3 was south to a stake in his, the grantee's own line, his line when located would control course and distance, and that the surveyor had testified that he had made no effort to find the Hughes line called for in the grant, and that no effort so far as he knew had been made to locate it. His honor charged the jury that as the defendant's paper called for the Hughes line it was the defendant's duty to make reasonable efforts to find it and charged the jury that the burden was upon the defendant to locate the Hughes line, before he could establish the boundary by course and distance. The defendant excepted. After the jury had retired, his honor informed counsel that he was of the opinion there was no evidence to support the allegation that the defendant was in possession when the suit was brought and that he would charge the jury to answer the second issue "No." Counsel for both parties consented thereto. The jury found the first issue for the plaintiff, second issue by consent "No." That the defendant had trespassed upon the land and assessed the plaintiff's damages at $40. Thereupon his honor rendered judgment that the plaintiff was the owner and entitled to the possession of the land, a full description whereof is set out in the judgment, and that she recover of the defendants and their surety upon their defense bond the sum of $40 and costs, to all of which the defendant duly excepted and appealed assigning as errors: The refusal of the court to give the first instruction asked. The instruction that the burden was upon the defendant to show where the Hughes line was and to make reasonable effort to find same, before he could rely upon the course and distance to fix the boundary of his grant. In permitting the plaintiff to recover the land described in the complaint after it had been found by the jury that the defendant was not in possession of the land in dispute when the action was brought. The defendant appealed from the judgment rendered.
Smith & Schenck, for appellant.
Gallert & Carson, for appellee.
CONNOR, J. (after stating the case).
The plaintiff introduced testimony tending to show the location of the Alexander grant of November 29, 1809, within the boundaries set out in the complaint. She does not connect herself...
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