King v. Lee

176 S.E.2d 394, 9 N.C. App. 369, 1970 N.C. App. LEXIS 1360
CourtCourt of Appeals of North Carolina
DecidedSeptember 16, 1970
DocketNo. 7017SC410
StatusPublished
Cited by2 cases

This text of 176 S.E.2d 394 (King v. Lee) 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
King v. Lee, 176 S.E.2d 394, 9 N.C. App. 369, 1970 N.C. App. LEXIS 1360 (N.C. Ct. App. 1970).

Opinion

Morris, J.

Appellants’ denial that petitioners owned any interest in the land described in the complaint as tract No. 3 converted the action into a civil action to try title, and it became, in effect, an action in ejectment. Skipper v. Yow, 249 N.C. 49, 105 S.E. 2d 205 (1958); 6 Strong, N.C. Index 2d, Partition, § 4, p. 199; Cothran v. Laughlin, 157 N.C. 282, 72 S.E. 961 (1911).

In ejectment, plaintiff must prevail, if at all, upon the strength of his own title and not because of the weakness or lack of title in defendant. Murphy v. Smith, 235 N.C. 455, 70 S.E. 2d 697 (1952); Cothran v. Motor Lines, 257 N.C. 782, 127 S.E. 2d 578 (1962). To recover, “plaintiff must show title good against the world, or good against the defendant by estoppel. It makes no difference whether the defendant has title or not, [371]*371the only inquiry being whether the plaintiff has it.” Davis v. Land Bank, 219 N.C. 248, 249, 13 S.E. 2d 417 (1941).

Petitioners’ proof of title consisted of the following: A deed (plaintiffs’ exhibit #2) dated 11 September 1946, from B. M. Johnston and wife, Mattie I. Johnston, to Albert King and wife, Lula King, recorded in Book 373, at page 593, Rocking-ham County Registry, conveying the following described property:

“A certain tract or parcel of land in Rockingham County, State of North Carolina, and adjoining the lands of B. M. Johnston, Lester Harrelson, J. L. Butler and others, and bounded as follows: It being a tract or parcel of land situated in Rockingham County near the Caswell County and Rockingham County lines, described and bounded as follows: Bounded on the North by the Watlington Estate; on the East by the lands of Lester Harrelson; on the South by Paw Paw Branch and the R. H. Johnston Homeplace; on the West by Hogan’s Creek and the lands of J. L. Butler, containing 100 acres, more or less, and being a part of the Billie Garrett Tract, later owned by George Johnston, Paw Paw Branch is the South boundary of the land herein conveyed; Hogan’s Creek and the land of J. L. Butler are the Western boundary thereof and the Watling-ton line is the Northern boundary. The Northeastern boundary is a small branch running from Lester Harrel-son’s land Southeasterly to Paw Paw Branch.”

The Tax Director of Rockingham County testified that tract No. 3 in the petition was described exactly as was the tract conveyed to the intestate by the deed referred to as plaintiffs’ exhibit No. 2. He testified that his records disclosed that the land in controversy had been listed for taxes by the intestate prior to his death and by his estate after his death. On cross-examination, he testified that the land listed for taxes by the intestate and by his estate was on the west side of Hogan’s Creek (the deed introduced by petitioners having shown that Hogan’s Creek was the western boundary of the land). He further testified on cross-examination that he had been a registered surveyor since 1954, that he had read the description of the land as contained in plaintiffs’ exhibit No. 2 but he could not tell where the land was situated.

[372]*372Petitioners then offered the Register of Deeds who testified from the records of her office that Lula King, wife of Albert King, died on 5 June 1947.

In Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142 (1889), Avery, J., set out clearly and precisely the various ways by which a party may prove title. They are:

“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. (Citations omitted.)
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. (Citations omitted.)
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; (citations omitted).
6. He may connect the defendant with a common source of title and show in himself a better title from that source. (Citations omitted.)”

In Cothran v. Motor Lines, supra, Rodman, J., noted that what was said by Avery, J., in 1889 accurately summarizes the law today with the exception that G.S. 1-36 makes it unnecessary to prove the sovereign has parted with its title when not a party to the action.

In Moore v. Miller, 179 N.C. 396, 102 S.E. 627 (1920), plaintiff alleged ownership of a tract of land and alleged defendant was in wrongful possession of a portion thereof. Defendant by [373]*373answer averred that he owned and was in possession at 22.6 acres which he described. At trial, plaintiffs introduced a connected line of deeds, the first dated in 1895, for 185 acres of land which was described by metes and bounds, and the last dated in 1918 conveying the land to plaintiffs. Plaintiffs’ evidence further tended to show defendant in possession of 22.6 acres of land, with definite boundaries as claimed by defendant in his answer, lying and being within the larger boundaries set forth in plaintiffs’ deeds. Defendant’s motion for nonsuit was granted, and the court entered judgment adjudging defendant to be the owner of the 22.6 acres and entitled to retain possession. On appeal the Court affirmed the nonsuit but held that there was error in adjudging title in defendant because that could only be done on affirmative findings. In affirming the nonsuit, the Court reiterated the rule that in an action in ejectment plaintiff must recover on the strength of his own title. After setting out, in seriatim, the six methods of meeting that requirement, the Court said:

“From a perusal of this statement it will appear, as held in Graybeal v. Davis, 95 N.C., 508, that, in order for plaintiff to establish his title, he must show:
1. A grant from the State directly to himself or connect himself with one by proper deeds or he must show possession in the assertion of ownership, with or without color, for the requisite period, or that defendant is estopped to deny his title.
Recurring to the testimony, the plaintiff has failed to show title in any of the ways indicated in these decisions. He has not shown any grant from the State. Nor has he offered any evidence of possession in himself or those under whom he claims. Nor presented any facts creating an estoppel in his favor. He has shown merely a line of deeds, beginning in 1895, covering a tract of land of 185 acres, and that defendant is in present possession of a portion of said land asserting ownership, and, on authority, this will not suffice.”

In Cothran v. Motor Lines, supra,

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Bluebook (online)
176 S.E.2d 394, 9 N.C. App. 369, 1970 N.C. App. LEXIS 1360, Counsel Stack Legal Research, https://law.counselstack.com/opinion/king-v-lee-ncctapp-1970.