Yow v. Armstrong

• Decision Date: 09 October 1963
• Docket Number: No. 161,161
• Parties: John Edward YOW v. L. R. ARMSTRONG and wife, Dorothy N. Armstrong.
• Court: North Carolina Supreme Court

Page 620

132 S.E.2d 620

260 N.C. 287

John Edward YOW v. L. R. ARMSTRONG and wife, Dorothy N. Armstrong.

No. 161

Supreme Court of North Carolina.

Oct. 9, 1963

Yow & Yow, Wilmington, for plaintiff-appellant.

Carr & Swails by James B. Swails, Wilmington, for defendant-appellees.

RODMAN, Justice.

Plaintiff has two assignments of error: First. The court erred in holding that defendant had offered evidence sufficient to establish good title to the property sold plaintiff. Plaintiff takes the position that the burden of establishing title was on the defendants. No matter what the law may have been prior to the adoption of the Code of Civil Procedure and our registration statutes (See 14 Am.Jur. 566 and cases cited in note 8), it is now settled that when plaintiff alleges a breach of a covenant of seizin and the allegation is denied, the burden rests on plaintiff to establish his cause of action. Eames v. Armstrong, 142 N.C. 506, 55 S.E. 405; Cherry v. Roanoke Tobacco Warehouse Co., 237 N.C. 362, 75 S.E.2d 124; 21 C.J.S. Covenants § 129, pp. 1000-1001.

Here defendants specifically denied plaintiff's allegation of a breach of the covenant. The mere fact that defendants did not stop with a mere denial but alleged the manner in which they acquired title was not sufficient to shift the burden of proof from plaintiff to defendants.

In this case it is immaterial where the burden of proof rested. There was plenary evidence to show defendants had physical possession of the properties described in the deed to them for more than seven years. It was possession claimed as a right by virtue of the deed to them. The evidence was ample to warrant the finding which the court, sitting as a jury, made. Whether the court should have accepted the evidence as true or rejected it as unworthy of belief was for the judge sitting as a jury: his determination of that question is conclusive.

Plaintiff's second assignment of error is to the judgment itself. He contends the judgment is erroneous because based on a misconception of the law and not supported by the facts found. He says: Defendants trace their title to the deed made by McIntire, commissioner; the defendants in the action in which McIntire was appointed and directed to act were cotenants; some were not served; the decree authorizing a sale could not bind those not parties; nothing short of twenty years' adverse possession is sufficient to bar cotenants. To support his assertion he relies on Williams v. Robertson, 235 N.C. 478, 70 S.E.2d 692; Whitehurst v. Hinton, 230 N.C. 16, 51 S.E. 2d 899; Peel v. Calais, 224 N.C. 421, 31 S.E.2d 440.

Plaintiff's contention is without merit for these reasons: (1) We find nothing in the record which tends to establish the fact that defendants trace their title to the deed made by McIntire as commissioner. Even if it be conceded that defendants did trace title to the deed executed by McIntire,...