Cheek v. Lange , 23 N.C. App. 689 ( 1974 )

PARKER, Judge.

The jury trial being solely upon defendants’ counterclaim of adverse possession, defendants first presented evidence. At the close of defendants’ evidence, plaintiffs “made a motion as of nonsuit,” which was denied. The validity of this ruling is the first question which plaintiffs seek to present on this appeal.

Since the adoption of our new Rules of Civil Procedure, G.S. Chap. 1A, the old motion “as of nonsuit” has been replaced by the motion for a directed verdict made under Rule 50(a), and we shall treat plaintiffs’ motion as though it had been a motion for a directed verdict. Rule 50(a) contains the mandatory directive that “ [a] motion for a directed verdict shall state the specific grounds therefor.” Anderson v. Butler, 284 N.C. 723, 202 S.E. 2d 585 (1974) ; Wheeler v. Denton, 9 N.C. App. 167, 175 S.E. 2d 769 (1970). The record fails to show compliance with this directive. If this be overlooked, nevertheless the question which plaintiffs first seek to present on this appeal is not before us for review. After their motion made at the close of defendants’ evidence was denied, plaintiffs introduced evidence and did not thereafter renew their motion. They thereby waived the motion previously made. Woodard v. Marshall, 14 N.C. App. 67, 187 S.E. 2d 430 (1972) ; 5A Moore’s Federal Practice, ¶ 50.05 [1] ; 9 Wright and Miller, Federal Practice and Procedure, § 2534(2).

Plaintiffs assign error to the jury instructions, contending that the trial court erred when it assumed, throughout the charge, that evidence concerning defendants’ adverse possession of one of the contested tracts of land would simultaneously indicate their claim of ownership of the other two. The evidence— although confusing in many respects because of the incompleteness of the record upon appeal — indicates that the property in question was, in fact, three distinct parcels of land separately described by metes and bounds in both the 1932 deed under which plaintiffs claim title and the 1944 deed which formed the basis of defendants’ claim of seven years adverse possession under color of title. In such a situation, “possession of a single tract is not constructively extended to a separate and distinct tract even though both tracts are described in the same conveyance.” Bowers v. Mitchell, 258 N.C. 80, 128 S.E. 2d 6 (1962). The trial court failed to instruct the jury upon this rule of law. This error, moreover, was prejudicial. For the most part, each piece of evidence introduced by defendants to prove their claim described some possessory act upon one rather than upon all of the three tracts; given this factual context, the jury was left free to speculate that a successful showing of adverse possession of one tract would simultaneously demonstrate the same as to the remaining two.

For error in the charge, there must be a

New trial.

Chief Judge Brock and Judge Baley concur.