Caudle v. . Long , 132 N.C. 675 ( 1903 )

This is an action in the nature of ejectment in which the plaintiffs seek to recover lands admittedly in the possession of the defendant. The plaintiffs introduced in evidence a deed from Thomas B. Little to Solomon H. Mullis, dated 21 September, 1860, and registered 12 October, 1901. Plaintiffs then introduced Mrs. R. E. Phifer, who testified that Solomon H. Mullis "was my first husband, and we were married about forty-six years ago. We moved to the land in 1860 or 1861, about the time my husband bought it. We made one or two crops; it was war times and my husband went to the war and I moved with our two children to my father's. My husband came from the war very sick and died in my father's house during the (676) war. We had two children, Hampton M. Mullis and Serena M. Mullis. Serena married ________ Caudle, her present husband, when she was only 17 years of age, and she has been married to him ever since. Hampton is now 45 years old. No crop was raised by us after my husband moved off. Jacob Helms went into possession of the land soon after we moved off, and after him the defendant Long went into possession and has been in possession ever since. I do not know when they took possession. I got the crops off the land after my husband's death. After his death I married J. W. Phifer. After I married Phifer the defendant Long came to me and said he wanted to buy my interest in the land, and my husband and I made him a deed." Plaintiff introduced deed dated 6 January, 1873, and registered 10 December, 1885. This was introduced to show that the defendant claimed under Solomon H. Mullis. The answer admits possession. Plaintiff rested, and defendant moved to nonsuit, which was allowed.

As far back as Taylor v. Gooch, 48 N.C. 467, it was said that the rule that the plaintiff in ejectment must recover on the strength of his own title, either as being in itself good against all the world, or good against the defendant by estoppel, was too well established in this State to be the subject of discussion. Hence we will look alone to the title of the plaintiffs. If they own the land, they must show it. If they do not own the land, it makes no difference to them who does own it, and the defendant may remain in possession until the true owner asserts his right. The plaintiff must show at least a prima facie title before any evidence is required from the defendant. In Mobley v. Griffin,104 N.C. 112, the different methods by which the plaintiff may show suchprima facie title are thus stated by the Court:

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 to himself and those (677) under whom he claims, for twenty-one years before the action was brought.

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.

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.

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.

6. "He may connect the defendant with a common source of title, and show in himself a better title from that source."

In support of these propositions, numerous authorities were cited by the learned Justice writing the opinion, and we are not aware that their correctness has since been questioned.

In the case at bar the only evidence of title in the plaintiff's ancestor Mullis is the deed from Little dated 21 September, 1860, and there is no evidence of possession for the seven years necessary to ripen a title. Hence, no prima facie case has been established.

The plaintiffs further contend that as the defendant took a deed for the land from Mrs. Phifer, the widow of their father, Mullis, that he is estopped to deny Mullis' title. This would be so if Mrs. Phifer had been one of the heirs or devisees of Mullis, but she had no interest in the land beyond her right of dower, which does not appear to have been assigned. Her deed to the defendant is not in the record, and hence we cannot tell what it purports to convey. It is argued that it conveyed only her right of dower, but as that was a fact to be proved by the plaintiffs, we cannot assume its truth. If the (678) defendant had held under a deed from one of the heirs or from the widow conveying her right of dower, he might hold as tenant in common with the heirs; but no such facts appear, nor is there proof tending to establish them. The mere existence of a deed is no proof of its contents. Where there is no evidence tending to establish a fact essential to the plaintiff's recovery, as in the case at bar, a motion for nonsuit is properly sustained. Wittkowsky v. Wasson, 71 N.C. 451; Spruill v. InsCo., 120 N.C. 141. The judgment of the court below is Affirmed.