Ditmore v. . Rexford

81 S.E. 994, 165 N.C. 620, 1914 N.C. LEXIS 323

• Court: Supreme Court of North Carolina
• Decided: May 27, 1914
• Status: Published

Opinion

Clark, O. J.

This was a proceeding for partition of land begun before the clerk. The defendants pleaded sole seisin and the cause was transferred to the court at term. It became then in effect an action of ejectment. Hunnicutt v. Brooks, 116 N. C., 792; Sipe v. Sherman, 161 N. C., 109.

The plaintiffs introduced a quitclaim deed from George Bum-garner to Daniel D. Foute (under whom the plaintiffs claim as heirs at law) and three others, dated 3 January,- 1853. This deed recites tbat it embraces land covered, by certain entries therein named, which are the land in controversy. These entries had been taken out 2 January; 1849. On 14 October, 1853, Bumgarner took out grants to himself upon aforesaid entries, which grants were recorded 3 September, 1854, in the register of deeds’ office in. Macon County, where the land then lay.

The defendants in their answer set up title in themselves'by mesne conveyances from Bumgarner; and also pleaded the several statutes of limitations, and that the plaintiffs had not shown, possession in the defendants.

Upon this evidence the court directed a nonsuit. It was not necessary to show possession in the defendants, as the answer alleged it, but the j)lea of the statute of limitations thre^ upon the plaintiffs the burden of showing that they were not barred, and hence were not entitled to judgment at the close of their evidence. House v. Arnold, 122 N. C., 220; Gupton v. Haw kins, 126 N. C., 81.

When Bumgarner took out the grants for himself, this put him in an adverse relation to the plaintiffs’ ancestor, who then had a cause of action for whatever rights he could assert under the quitclaim deed, if any. He had legal notice by the registration of said grants in 1854. The plaintiffs introduced no evidence to rebut'the presumption of abandonment and of the bar of the statute by the long lapse of time from the taking-out of the grants and recording the same down to the institution of this action, 24 October, 1911.

The nonsuit was therefore properly granted. The plaintiffs’ claim being based upon equitable title, t even if there were no statute of presumption or statute of limitations, the lapse of fifty-seven years, unexplained by any evidence — for the plaintiffs have put in none — makes it a stale claim, which equity will not sustain. Cox v. Brower, 114 N. C., 423; 16 Cyc., 150.

The judgment of nonsuit is

Affirmed.