Keller v. Hennessee

180 S.E.2d 452, 11 N.C. App. 43, 1971 N.C. App. LEXIS 1448
CourtCourt of Appeals of North Carolina
DecidedApril 28, 1971
DocketNo. 7130SC23
StatusPublished
Cited by3 cases

This text of 180 S.E.2d 452 (Keller v. Hennessee) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Keller v. Hennessee, 180 S.E.2d 452, 11 N.C. App. 43, 1971 N.C. App. LEXIS 1448 (N.C. Ct. App. 1971).

Opinion

VAUGHN, Judge.

This is an action in trespass to try title; therefore, plaintiffs must allege and prove both title in themselves and trespass by defendants. 7 Strong, N. C. Index 2d, Trespass To Try Title, § 1, p. 249. “Defendants’ denial of plaintiffs’ allegations of title and trespass places the burden on plaintiffs to establish each of these allegations. Day v. Godwin, 258 N.C. 465, 128 S.E. 2d 814.” Pruden v. Keemer, 1 N.C. App. 417, 161 S.E. 2d 783. Plaintiff must rely on the strength of his own title, and not on the weakness of defendant’s title. Norman v. Williams, 241 N.C. 732, 86 S.E. 2d 593. Plaintiff may meet his burden of proof by various methods which are set forth in Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142.

The rules set forth above have been recited and applied in numerous cases. In most of the cases, the question was whether plaintiff’s proof of title was sufficient to withstand defendant’s motion for nonsuit. In the case at hand the defendants alleged and attempted to prove their own title. “Where, in an action in trespass to recover for the cutting of trees, defendant denies plaintiff’s title and alleges title in himself and prays that he be adjudged the owner of the tract described in the answer, the answer amounts to a cross-action in trespass to try title, and the question of title is involved and the defendant has the right to have it adjudicated.” 7 Strong, N. C. Index 2d, Trespass To Try Title, § 1, p. 250, citing Andrews v. Bruton, 242 N.C. 93, [47]*4786 S.E. 2d 786. “Where defendant sets up title to a part of the land, to entitle him to affirmative relief he must prove the facts constituting this title, and as to such facts the burden is on him . . . .” 87 C.J.S., Trespass To Try Title, § 51, p. 1160.

Our Supreme Court has very recently discussed the effect of the failure of a party to carry his burden of proof in an action in trespass to try title:

“A failure of one of the parties to carry his burden of proof on the issue of title does not, ipso facto, entitle the adverse party to an adjudication that title to the disputed land is in him. He is not relieved of the burden of showing title in himself. Moore v. Miller, 179 N.C. 396, 102 S.E. 627. ‘The plaintiff must recover on the strength of his own title, and upon failure of proof by him the jury may well find that he is not the owner of the land, although satisfied that the defendant has no title.’ Wicker v. Jones, 159 N.C. 103, 116, 74 S.E. 801, 806. This statement is, of course, equally applicable to a defendant who has set up a cross action in which he claims title to the land in dispute. . . . There are cases involving a disputed title to land in which neither party can carry the burden of proof.” Cutts v. Casey, 278 N.C. 390, 180 S.E. 2d 297.

To apply the foregoing principles to this case, we set out relevant findings of fact and conclusions of law from the judgment appealed from.

1. That the plaintiffs in this action are claiming under that deed, dated November 28th, 1896, recorded in Deed Book V-22, at Page 4, in the office of the Register of Deeds of Jackson County from John Joyce and wife, Polly Joyce, to William Keller and wife, R. M. Keller, both of the grantees being deceased, and the plaintiffs being their heirs at law.
3. That no chain of title was introduced by the plaintiffs other than the deed recorded in Deed Book V-22, Page 4.
6. That the Hennessee property title derives from State Grant No. 586, and the chain of title, as introduced by the defendant Hennessee, is continuous and unbroken [48]*48from State Grant No. 586, until title vested in the defendants in their deed from the Davey Tree Expert Co., Inc. . . .
7. That none of the plaintiffs and none of the defendants have shown any open, notorious or adverse possession under known metes and bounds, and that no party to this action may prevail under any theory of adverse possession.
8. That the defendants, Clodfelters introduced a chain of title continuous and unbroken to State Grant No. 1246, as recorded in Deed Book H-8, Page 329, dated 21st day of September, 1882.
Based Upon the Foregoing Findings of Fact, the Referee Concludes as a Matter of Law:
1. That under the law in our State every person is charged with the knowledge of what a title search would disclose.
2. That a title search in 1896 would have disclosed that a disputed area between the plaintiffs and the Hen-nessees was a portion of State Grant No. 586, and that at said time title was vested in other persons.
3. That a title search would have disclosed that the disputed area between the plaintiffs and the Clodfelters was a portion of State Grant No. 1246, and that at said time was in the possession of other persons.
4. That no authority or ownership of any of the disputed portion was shown to have been in John Joyce and wife, Polly Joyce, at the time they convey to William H. Keller and wife, R. M. Keller, nor was any evidence shown that any of the Clodfelter property was vested in any person with authority to convey to William H. Keller and wife, R. M. Keller.
6. That the defendants W. C. Hennessee and wife, Stella B. Hennessee, are the owners in fee simple of that property described in their further answer.
7. That the defendant, J. M. Clodfelter (single), and Rose A. Clodfelter (single), are the owners in fee simple of that property set forth in their further answer.

[49]*49These findings and conclusions can be summarized as follows: The plaintiffs have not proved good title to the property they claim, and the defendants have proved good title to the property they claim.

Findings of fact made by a referee and approved by the trial judge are not subject to review on appeal if they are supported by any competent evidence. “Likewise the judge, upon hearing and considering exceptions to a referee’s report and supplemental report, may affirm, overrule, modify or make different or additional findings of fact. This affords no ground for exception on appeal, unless such action by the judge is not supported by sufficient evidence, or error had been committed in receiving or rejecting testimony upon which they are based.” Caudell v. Blair, 254 N.C. 438, 119 S.E. 2d 172.

In the present case, the findings and conclusions that neither party could prevail under any theory of adverse possession are supported by competent evidence. The evidence also supports the conclusion that there was no evidence of ownership of any of the disputed portion by John Joyce and wife, Polly Joyce, at the time they conveyed to William H. Keller and wife, R. M. Keller. No chain of title going back further than the 1896 deed from the Joyces to the Kellers was introduced. There is no chain of title connecting plaintiffs’ title to a State grant, no allegation or proof of any- form of adverse possession, no allegation or proof of title from a common source, nor any allegation or proof of title by estoppel. The plaintiffs have, therefore, failed to carry the burden of proving title in themselves.

We now consider whether the findings and conclusions adjudging title in the defendants are supported by competent evidence.

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Cite This Page — Counsel Stack

Bluebook (online)
180 S.E.2d 452, 11 N.C. App. 43, 1971 N.C. App. LEXIS 1448, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keller-v-hennessee-ncctapp-1971.