Shelly v. Grainger

• Decision Date: 05 April 1933
• Docket Number: 291.
• Citation: 168 S.E. 736,204 N.C. 488
• Parties: SHELLY et al. v. GRAINGER et ux.
• Court: North Carolina Supreme Court

168 S.E. 736

204 N.C. 488

SHELLY et al. v. GRAINGER et ux.

No. 291.

Supreme Court of North Carolina

April 5, 1933

Appeal from Superior Court, Columbus County; Devin, Judge.

Action by I. P. Shelly and another against Garfield Grainger and wife. Judgment for plaintiffs, and defendants appeal.

No error.

After charging on constructive possession in action of ejectment court did not err in applying principle to plaintiff's evidence, where it applied same principle to defendant's evidence.

This is a civil action in ejectment, brought by the plaintiffs against the defendants to recover lands described in the complaint, as follows: "Farms Nos. 1, 2 and 7 on plat of land formerly belonging to R. J. C. Ward plat of which is on record in Columbus County, Register of Deeds office in Book D-3, page 600. *** All three tracts containing 76.68 acres more or less."

The answer denied plaintiffs' title, set up ownership in fee simple to part of the land, and pleaded the 7, 21, and 30 year statute of limitations in bar of any recovery. Only lot 1 was in dispute at the trial.

The issue submitted to the jury and their answer thereto was as follows: "Are the plaintiffs owners and entitled to the possession of the land in controversy, designated on the Court map by the letters and figures A, B, C, D, E, 4 and A? Answer: Yes."

This was shown on the court map as lot 1.

(Image Omitted) The court below signed judgment in accordance with the verdict. Defendants made numerous exceptions and assignments of error and to the judgment as signed, and appealed to the Supreme Court. The material ones and necessary facts will be set forth in the opinion.

E. M. Toon, of Whiteville, and R. G. Grady, of Wilmington, for appellants.

Tucker & Proctor, of Whiteville, for appellees.

CLARKSON Justice.

The defendants made motions for judgment as of nonsuit at the close of plaintiffs' evidence and at the close of all the evidence. C. S. § 567. The court below overruled these motions, and in this we can see no error.

The defendants claim that the burden was on plaintiff to show adverse possession and there was no sufficient evidence to be submitted to the jury on this aspect; therefore plaintiffs ought to have been nonsuited. We cannot so hold.

It is well settled in this jurisdiction that, in an action of ejectment, plaintiff must recover, if at all, on the strength of his own title, and not on the weakness of his adversary. Plaintiff in ejectment must show title good against the world or good against defendant by estoppel; weakness of defendant's title making no difference.

The evidence on the part of plaintiffs was to the effect that "A" to "B," which was a road, was the well-defined boundary of lot 1, in dispute, and defendant Garfield Grainger, and those through whom he claimed, so recognized this as the dividing line by agreement, acquiescence, and conduct; that their deed called for 76.68 acres, and it was a body of farm and timber land, and the line in controversy in the deed called for from "A" to "B" was the true dividing line; that defendants did not know where the Carteret line was when Grainger purchased the land; that defendants' deed covered about 30 acres; that "A" to "B" was the dividing line, and, if the Carteret line, as contended by defendants, was from "E" to "4," the defendants would have some 60 acres instead of 30 acres of land--his deed called for about 30 acres.

On the other hand, the evidence on the part of defendants was to the effect that the line from "E" to "4" was the Carteret line and the true line called for in his deed. The plaintiffs' evidence was to the effect that at numerous times and periods much timber had been cut on the 30-acre tract (No. 1), and some near defendants' home, without objection at any time and within 4 feet of the road "A" to "B." On the other hand, defendants' evidence was to the effect that north of the line from "A" to "B" from "E" to "4" was the true dividing line--the Carteret line. Garfield Grainger, defendant, testified, in part, that "in the fall of 1931, after I got moved there, I put three buildings on the disputed land; two automobile sheds, a shelter and a barn for peas and plunder. I built it especially to put peas in. I have had hog pens and hog lots on this disputed land since I have been there. I have continued to use the disputed land. I have cut wood on it and cross ties, and did not hear no dispute until Mr. Shelly bought it. I have cleared about three-quarters of an acre, or something like that, north of the cart path in front of the house and had it in cultivation."

The evidence of both plaintiffs and defendants in regard to the true dividing line were questions of fact for the jury to determine.

The court below charged fully as to the burden of proof being on plaintiffs to establish title by the greater weight of the evidence. The court also charged fully the law as to the several ways of establishing title in this state. The court charged: "I used the phrase 'adverse possession,' and it is necessary for you to understand what that means. The best definition I have seen is given by our Supreme Court in the case of Locklear v. Savage, in 159 N.C. 236, at pages 237, 238, 74 S.E. 347, 348, in which the Court uses this language: Adverse possession 'consists in actual possession, with an intent to hold solely for the possessor to the exclusion of others, and is denoted by the exercise of acts of dominion over the land, in making the ordinary use and taking the ordinary profits of which it is susceptible in its present state; such acts to be so repeated as to show that they are done in the character of owner, in opposition to right or claim of any other person, and not merely as an occasional trespasser. It must be decided and notorious as the nature of the land will permit, affording unequivocal indication to all persons that he is exercising thereon the dominion of owner. *** The possession must, of course, be not only adverse,...