Mobley v. . Griffin , 104 N.C. 112 ( 1889 )

The general rule is that the burden is on the plaintiff, in the trial of actions for the possession of land, as in the old action of ejectment, to either prove a title good against the whole world or good against the defendant by estoppel. Taylor v. Gooch, 48 N.C. 467; Kitchen v. Wilson,80 N.C. 191.

The plaintiff may safely rest his case upon showing such facts (115) and such evidences of title as would establish his right to recover, if no further testimony were offered. This prima facie showing of title may be made by either of several methods. Wait Sedgewick on Trial of Title to Land, sec. 801; Conwell v. Mann, 100 N.C. 234; Malone Real Property Trials, 83.

1. He may offer a connected chain of title or a grant direct from the State to himself.

2. Without exhibiting any grant from the State, he may show open, notorious, continuous adverse and unequivocal possession of the land in controversy, under color of title in himself and those under whom he claims, for twenty-one years before the action was brought. Graham v.Houston, 15 N.C. 232; Christenbury v. King, 85 N.C. 229; Osborne v.Johnston, 65 N.C. 22.

3. He may show title out of the State by offering a grant to a stranger, without connecting himself with it, and then offer proof of open, notorious, continuous adverse possession, under color of title in himself and those under whom he claims, for seven years before the action was brought. Blair v. Miller, 13 N.C. 407; Christenbury v. King, supra: Islerv. Dewey, 84 N.C. 345.

4. He may show, as against the State, possession under known and visible boundaries for thirty years, or as against individuals for twenty years before the action was brought. Secs. 139 and 144, Code.

5. He can prove title by estoppel, as by showing that the defendant was his tenant, or derived his title through his tenant, when the action was brought. Code, sec. 147; Conwell v. Mann, supra; Melvin v. Waddell,75 N.C. 361.

6. He may connect the defendant with a common source of title and show in himself a better title from that source. Whissenhunt v. Jones,78 N.C. 361; Love v. Gates, 20 N.C. 498; Spivey v. Jones, 82 N.C. 179.

(116) While the plaintiff in this action did not introduce a grant from the State, he offered a chain of title connecting himself with the will of Edmund Griffin, dated 1 April, 1796, and we infer, both from the record and the argument in this Court, that possession for twenty-one years under this title by Mary Brewer and those under whom she claims was shown or admitted in the court below. But, after making this admission, the defendant demurred ore tenus to the testimony, for that it had also been proven on the part of the plaintiff that the homestead of Mary Brewer, the defendant in the execution under which plaintiff bought at sheriff's sale, owned no other land at the time of the sale, and the land in controversy was sold as her property, without allotting her homestead; wherefore the sheriff's deed was void.

If the plaintiff had offered, in connection with his other evidence tending to show title, the sheriff's deed, with judgment, execution and proceeding by virtue of it, simply, but no testimony tending to show that a homestead had or had not been allotted to Mary Brewer, he would have made aprima facie case, upon which the defendant could not have asked for judgment of nonsuit.

Counsel for plaintiff contended on the argument in this Court that the defendant could not object to the validity of the sheriff's deed unless he had specially set up in his answer that it was void for the reason assigned.

Both under the Code pleadings and the more formal rules applicable in the trial of ejectment, it is competent, under a general denial or the general issue, to show that any deed offered by a party as evidence of title is void, for the reason that it was executed in the face of a statute prohibiting its execution, or by reason of a want of capacity in the grantor, or for fraud in the factum, as where the deed was executed by one at the time too drunk to know what he was doing, or by an ignorant man, who could not read, and to whom the deed was fraudulently misrecited.Nichols v. Holmes, 46 N.C. 360; Perry v. Fleming, (117)4 N.C. 344; Suttles v. Hay, 41 N.C. 124.

In Jones v. Cohen, 82 N.C. 75, Chief Justice Smith lays down the rule as follows: "In ejectment, any deed produced as a link in the chain of title may be attacked and invalidated by showing incapacity in the maker, and this without any record specification of the nature of the obligation." Indeed, in all controversies as to title, evidence impeaching an alleged title deed is always as competent as that sustaining it. Clayton v. Rose,87 N.C. 106; Freeman v. Sprague, 82 N.C. 366.

Wilson v. Taylor, 98 N.C. 275, was cited and relied upon to sustain the view advanced by the appellant. In that case, however, there was no evidence offered to show whether a homestead had been allotted or not, and after the close of the evidence the defendant contended that the burden was on the plaintiff to show affirmatively that the homestead of the debtor was laid off in land other than that sold, and thus establish the validity of his deed. In holding with the judge below, that the plaintiff was not required to make such proof as a part of his prima facie case, this Court sustained the rule already announced. The question of the competency of testimony impeaching the deed, in the absence of a special plea in the answer, was not raised, because no such evidence was in fact given or offered.

In McCracken v. Adler, 98 N.C. 400, it was admitted, as in the case at bar, that no homestead had been allotted to the defendant in execution, and the Court held that the sheriff's deed to the purchaser at the execution sale was void as against a defendant who had set up in his answer only a general denial of the plaintiff's title. There was

No error.

Cited: Lineberger v. Tidwell, post, 510; Ruffin v. Overby, 105 N.C. 83;Bonds v. Smith, 106 N.C. 566; Buie v. Scott, 107 N.C. 182;Gilchrist v. Middleton, ib., 679; Brown v. King, ib., 315; Cox v. Ward,ib., 512; Turner v. Williams, 108 N.C. 212; Dickens v. Long, 109 N.C. 168;McMillan v. Williams, ib., 254; Averitt v. Elliott, ib., 564; Herndonv. Ins. Co., 110 N.C. 283; Dickens v. Long, 112 N.C. 315; Buie v. Scott, ib., 376; Fulton v. Roberts, 113 N.C. 428; Walker v.Moses, ib., 530; Wyatt v. Mfg. Co., 116 N.C. 283; Alexander v. Gibbon,118 N.C. 808; Allison v. Snider, ib., 956; Deaver v. Jones, 119 N.C. 600;Collins v. Swanson, 121 N.C. 68; Marshburn v. Lashlie, 122 N.C. 240;Cawfield v. Owens, 130 N.C. 643; Bullock v. Bullock, 131 N.C. 30;Prevatt v. Harrelson, 132 N.C. 251; Caudle v. Long, ib., 676; Atwell v.Shook, 133 N.C. 391; Marshall v. Corbett, 137 N.C. 558; Campbell v.Everhart, 139 N.C. 513; Mitchell v. Garrett, 140 N.C. 399; Bullard v.Hollingsworth, ib., 639; Allen v. Howell, 141 N.C. 114; Rumbough v.Sackett, ib., 497; Broadwell v. Morgan, 142 N.C. 479; Fincannon v.Sudderth, 144 N.C. 594; Sutton v. Jenkins, 147 N.C. 17; McCaskill v.Walker, ib., 198; Chatham v. Lansford, 149 N.C. 365; McFarland v.Cornwell, 151 N.C. 433; Weston v. Lumber Co., 162 N.C. 168; Raleigh v.Durfey, 163 N.C. 160; Barfield v. Hill, ib., 265; Brock v. Wells,165 N.C. 173; Land Co. v. Cloyd, ib., 597; Fisher v. Toxaway Co., ib., 672;Reynolds v. Palmer, 167 N.C. 455; McCaskill v. Lumber Co., 169 N.C. 25;Buchanan v. Hedden, ib., 223; White v. Edenton, 171 N.C. 22; Cross v. R.R., 172 N.C. 124; Fleming v. Sexton, ib., 253; Heath v. Lane, 174 N.C. 120;Pope v. Pope, ib., 288; Ricks v. Brooks, 179 N.C. 209; Moore v.Miller, ib., 397.

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