Stewart v. Jaggers

DeviN, J.

The defendants assign error in the ruling of the trial judge denying their motion for judgment of nonsuit, but an examination of the record indicates that the evidence offered by plaintiffs was sufficient to require its submission to the jury, and that the motion was properly denied.

The defendants excepted to the ruling of the court in several instances in the admission of testimony and also excepted to the refusal to strike out other evidence, but they do not point out wherein in any material respect the rulings complained of were prejudicial. These assignments are without merit.

The defendants call attention to the parenthetical notation, entered in the record during the examination of a witness as to the plaintiffs’ possession, that “at this point it is stipulated that plaintiffs rely upon the record title to establish their title.” The defendants contend that plaintiffs should be held bound by this stipulation to proof of record title only in order to prevail, and that in the absence of evidence of title by this method the defendants’ motion for nonsuit should have been allowed. But we do not so interpret the effect of the quoted statement noted in the record during the trial.

The plaintiffs in their pleadings alleged their title solely by adverse possession within known and visible boundaries under color of title for 20 years and 7 years, and all their testimony was devoted to proof of title by that method. Mobley v. Griffin, 104 N.C. 112 , 10 S.E. 142 ; Norman v. Williams, 241 N.C. 732 , 86 S.E. 2d 593 ; G.S. 1-38. In order to establish title by adverse possession under color it was necessary for the plaintiffs to offer in evidence written instruments purporting to convey title describing the lands claimed by definable lines and boundaries, to fit the description to the land, and to show adverse possession of some portion of the land for the statutory period. Wallin v. Rice, 232 N.C. 371 , 61 S.E. 2d 82 . For this purpose and to this extent plaintiffs would have to rely upon the record to show color of title.

Defendants noted exception to the following portion of the court’s charge to the jury: “If you believe all of the evidence and find the facts to be as the evidence and all of it tends to show by its greater weight, your answer to the first issue would be yes; otherwise it would be no.” Since the record discloses that the plaintiffs’ evidence, tending to make out a case of adverse possession for more than 7 years under *169 color of the deeds offered, was not controverted by any evidence to the contrary, we think the peremptory instruction on the first issue was fully justified.

In the trial we find

No error.

HiggiNS, J., took no part in the consideration or decision of this case.

The foregoing opinion was prepared by Devin, Emergency Justice, while he was serving in place of Higgins, J., who was absent on account of his physical condition. It is now adopted by the Court and ordered filed.