State Bd. of Educ. v. Makely

• Decision Date: 12 September 1905
• Citation: 51 S.E. 784,139 N.C. 31
• Parties: STATE BOARD OF EDUCATION et al. v. MAKELY.
• Court: North Carolina Supreme Court

51 S.E. 784

139 N.C. 31

STATE BOARD OF EDUCATION et al. v. MAKELY.

Supreme Court of North Carolina

September 12, 1905

Appeal from Superior Court, Hyde County; Hoke, Judge.

Action by the state board of education and others against M. Makely. From a decree in favor of defendant, plaintiffs appeal. Affirmed.

Where a suit a set aside a cloud on title depended on whether the land was swamp land, and there was evidence that the land was not of the kind generally called and known as swamp land, it was proper for the court to refuse a motion for a peremptory instruction in favor of plaintiff.

This suit was brought for the purpose of having vacated and canceled a grant issued by the state to the defendant in 1888 for 176 1/2 acres of land, upon the ground that the land was not the subject of entry and grant, as it was swamp land and was vested in the plaintiff, the state board of education who had conveyed the same to its coplaintiff, the Alleghany Company, and therefore the grant was a cloud on the title of said company. Issues were submitted to the jury, which with the answers thereto are as follows: "Are plaintiffs the owners and in possession of the land set out and described in the complaint and referred to in the answer as the land contained in an alleged grant to defendant? No. (2) Does defendant wrongfully assert title to said land under a grant from the state of date 1888, thereby putting a cloud on plaintiff's title? No. (3) Is the defendant the owner and in possession of said land? Yes. (4) Do plaintiffs wrongfully assert title to said land under the deeds exhibited from Clark to Brooks and Leach, and from the Scranton Company to the Alleghany Company, thereby putting a cloud on defendant's title? and also under deed from state board of education to Alleghany Company? Yes."

Plaintiffs opened the case and introduced much evidence tending to show that the land in controversy is swamp land, and some of the defendant's witnesses testified to the same effect. Charles Polson, one of plaintiffs' witnesses, testified that it was low, boggy swamp, covered with water moss, and in order to contradict him and also, perhaps, to show that it was not swamp land, the defendant's counsel was permitted on cross-examination to ask the witness if the land in dispute was not naturally drained through the Bishop tract which lay between it and the creek, and which is high and dry land, and cultivated as a farm. The answer of the witness tended to show that the Bishop land adjoined the tract described in the complaint, and lay between it and Broad Creek, and that a ridge of that tract is under cultivation that it is high land and tillable, and only that part of it is dry and used as a farm, and the ridge is the only part that could be cultivated. The other facts are stated in the opinion.

Small & McLean and Rodman & Rodman, for appellants.

W. M. Bond, for appellee.

WALKER, J. (after stating the facts).

Whether it was not relevant for defendant to show by the witness Polson the general topography of the country immediately surrounding the tract in dispute, or the conformation of contiguous tracts, as bearing upon the character of the tract in question, and whether this evidence is of the same class as that excluded in Warren v. Makely, 85 N.C. 12, Bruner v. Threadgill, 88 N.C. 365, and Waters v. Roberts, 89 N.C. 145, where a comparison was attempted to be made between the tract in suit and other adjoining tracts for the purpose of determining the value of the former, we need not decide, as it is quite sufficient to hold, as we do, that, if the evidence was irrelevant, it was harmless. Indeed, all the advantage of the answer to the question was with the plaintiffs. It is apparent from the form of the question the defendant's counsel was attempting to prove that the natural drainage of the land in dispute was over the Bishop tract, as plaintiffs' own witness, J. H. Wahab, had previously testified. But defendant's counsel got, as an answer to his question, not only what he did not want or expect, but something quite the reverse of it, and therefore the evidence made in favor of the plaintiff. Besides, it would seem relevant to the issue to show that the Bishop tract lay between this land and the creek, the natural outlet for the drainage of lands in the vicinity, and that on it there was arable land or a farm. It may not have been conclusive, or even strong, evidence as to the true character of the land in dispute; but as a circumstance it perhaps constituted some evidence tending to show that it was not swamp land. We put our decision, however, on the ground that the evidence was harmless, and overrule the exception.

The plaintiffs assign as error his honor's instruction that the jury must be satisfied by the greater weight of the evidence that the land described in the complaint is "swamp land" before they could find for the plaintiffs, thereby placing the "burden of proof" upon them. We think this was a proper instruction under the pleadings and the facts of this case. Plaintiffs allege that they are the owners of this tract, because it is swamp land. The board of education, as successor to the president and directors of the literary fund (Const. art. 9, § 10; Code § 2506), could not establish any right or title to the land by virtue of the statute (Rev. Code, c. 66; Const. art. 9, § 10; Code, § 2506) investing it with the title to the "swamp lands" in the state as a part of the trust property to be held by it for the benefit of education, unless it could show that the lands claimed by it were of that description. Could a plaintiff, resting his right to the title or possession of land on a deed conveying or a will devising to him the swamp land in a certain larger tract described therein, recover any part of the land without showing that it comes within the particular description of the deed or will? The board does not acquire title by virtue of the statute to all of the lands of the state, but only to its "swamp lands." It is alleged in the complaint and virtually admitted in the answer that the plaintiff, the Alleghany Company, is in possession of the land claiming under a deed from the board of education, who asserted title to the land, under the statute, as swamp land. Assuming that this possession is presumed to be rightful, and is sufficient, generally, to present a prima facie case, and to compel the defendant "to go forward" with his proof or take the risk of an adverse verdict of the jury or an adverse ruling of the court as to the law, we yet think, as the plaintiffs further allege that they derived title to the land under the statute by reason of the fact that it is swamp land, and in no other way, they should be required to take the burden of establishing this fact, so essential to the successful maintenance of their suit.

This is not an action to recover the realty, but is brought for the avowed purpose of removing a cloud from the plaintiffs' alleged title, and for that purpose to have vacated and canceled the grant issued by the state to the defendant. Plaintiffs are therefore, as we have said, the actors, and they allege the affirmative of the issue to be the truth of the matter. McCormick v. Monroe, 46 N.C. 13. The mere fact that plaintiffs had possession of the land when the suit was commenced does not...