Prevatt v. Harrelson

• Decision Date: 24 March 1903
• Citation: 132 N. C. 250,43 S.E. 800
• Court: North Carolina Supreme Court
• Parties: PREVATT. v. HARRELSON et al.

43 S.E. 800

132 N. C. 250

PREVATT.

v.HARRELSON et al.

Supreme Court of North Carolina.

March 24, 1903.

EJECTMENT—ADVERSE POSSESSION—EVIDENCE—SHERIFF'S DEED—NONSUIT—NEW TRIAL.

1. In ejectment, evidence that plaintiff's grantor had raked and hauled straw off the land one or two years, and that plaintiff's father had farmed an acre or two of the land, was insufficient to show adverse possession.

2. In ejectment, a sheriff's deed to plaintiff's grantor is of itself no evidence of adverse possession by plaintiff's grantor.

3. Under Laws 1897, p. 155, c. 109, as amended by Laws 1899, p. 263, c. 131, and Laws 1901, p. 831, c. 594, providing that defendant may move for a nonsuit when plaintiff has rested, and, if the motion is denied, may except and appeal, or may introduce evidence, and thereby waive his exception, a new trial will be ordered when a motion to nonsuit has been improperly denied.

4. Under the statute, the granting of a motion to nonsuit does not deprive plaintiff of the right to bring a new action within one year, as expressly authorized by Code, §§ 142, 166.

Appeal from Superior Court, Columbus County, Robinson, Judge.

Action by James Prevatt against Jackson Harreison and others. From a judgment for plaintiff, defendants appeal. Reversed.

D. J. Lewis, for appellants.

C. C. Lyon, for appellee.

CLARK, C. J. This was an action of ejectment. At the close of plaintiff's evidence the defendant demurred, and moved to nonsuit plaintiff under the statute, and excepted to the refusal of the motion. As the defendant subsequently introduced evidence, this exception is waived by the terms of the statute. Chapter 594, p. 831, Laws 1901. At the close of all the evidence the defendant again demurred, and moved to nonsuit, under chapter 109, p. 155, Laws 1897, as amended by above chapter 594, p. 831, Laws 1901, and excepted to the refusal. In Mobley v. Griffin, 104 N. C. 115, 10 S. E. 142, it is laid down that the plaintiff must prove his right to recover in an action of ejectment in one of six ways, as follows: (1) He may offer a connected chain of title, or a grant from the state, to himself. (2) Or, without showing any grant from the state, he may show open, notorious, continuous, adverse, and unequivocal possession, under color of title in himself and those under whom he claims, for 21 years. (3) He may show title out of the state by a grant to a stranger, and then (unconnected with such grant) open, notorious, continuous, and adverse possession in himself and those under whom he claims for 7 years. (4) He may show as against the state possession under known and visible boundaries for 30 years, or against individuals similar possession for 21 years. Code, §§ 139, 140. (5) He can prove title by estoppel, by showing that the defendant was his tenant, or derived possession from his tenant. Code, § 147. (6) He may connect defendant with a common source of title, and show in himself a better title from that source. The plaintiff failed to show title in himself in either of these ways. The only testimony as to acts of possession by plaintiff, or those under whom he claims, was that an agent of plaintiff's grantor had raked and hauled straw off the land one or two years, and that in 1881 plaintiff's father had farmed an acre or two of the land in controversy. This was insufficient. Hamilton v. Icard, 114 N. C. 532, 19 S. E. 607; Shaffer v. Gaynor, 117 N. C. 15, 23 S. E. 154; McLean v. Smith, 106 N. C. 172, 11 S. E. 184.

The plaintiff claimed under a deed executed to him by John Prevatt in 1894. The court Instructed the jury that the sheriff's deed to plaintiff's grantor, John Prevatt, in 1856, was some evidence of adverse possession in those under whom plaintiff claims. This was error, for there was no evidence of possession thereunder beyond that above stated, and there is no presumption of law that the purchaser took possession. It was also error to refuse the motion to nonsuit plaintiff under the statute. In refusing the motion to nonsuit there was error, for which, under the uniform practice of this court, there must be a new trial. On such new trial, if the plaintiff can "mend his lick" by additional and sufficient evidence, well and good. He has not lost the land. If he cannot offer additional evidence, this, though a new trial in form, will be virtually a finality against him.

As the effect of chapter 109, p. 155, Laws 1897, as amended by chapter 131, p. 263, Laws 1899, and chapter 594, p. 831, Laws 1901, is often presented, it may be well to repeat what we have said in Means v. Railroad, 126 N. C, at page 429, 35 S. E. 813, which was cited and approved in Parlier v. Railroad, 129 N. C. 262, 39 S. E. 961: "The rule stands now just as it did before the passage of chapter 109, Laws 1897, and the amendment of 1899, except that under this legislation it is discretionary with the defendant whether he will introduce evidence after the motion to dismiss, or not, while before these acts it was discretionary with the court whether it would allow the defendant to introduce evidence after resting his case and making the motion." This is the sole change made by the statute, and that change cannot affect the settled practice that, when a motion to nonsuit or a demurrer to evidence is erroneously refused, a new trial has always been ordered. State v. Adams, 115 N. C. 784, 20 S. E. 722, and State v. Rhodes, 112 N. C. 858, 17 S. E. 164, are exactly in point, besides numerous cases in which it is taken as settled practice. The verdict and judgment being set aside a trial de novo is necessary.

Still less does the statute affect the rights of the plaintiff against whom a nonsuit is ordered, for the statute was directed solely to the enlargement of the rights of the defendant, who formerly was cut off from introducing evidence in his defense after the overruling of his demurrer to the evidence, unless so allowed In the discretion of the court. State v. Adams, 115 N. C. 775, 20 S. E. 722; State v. Hagan, 131 N. C. 803, 42 S. E. 901. By the...