Teel v. Johnson, 228 N.C. 155 (1947)

Nov. 5, 1947 · Supreme Court of North Carolina

228 N.C. 155

LEONARD A. TEEL and Wife, MABEL L. TEEL, v. C. I. JOHNSON and MRS. C. I. JOHNSON, His Wife.

(Filed 5 November, 1947.)

1. Ejectment § 15—

Answer in a possessory action denying plaintiffs’ title imposes the burden of proof on plaintiffs of showing title in themselves.

2. Ejectment § 17—

In an action for possession of real property, plaintiffs’ evidence of deed to themselves and mesne conveyances covering a period of 12 years, without evidence of title by adverse possession, or a common source of title, is insufficient to overrule defendants’ motion to nonsuit.

Appeal by defendants from Allay, J., at March Term, 1947, of BaNdolph.

Reversed.

This was a suit for tbe possession of a bouse and lot in Asbeboro on allegations of title and wrongful witbbolding by tbe defendants. Tbe defendants denied plaintiffs’ title and denied that defendants were in tbe wrongful possession of tbe property. Defense bond under G. S., 1-111, was given.

On issues submitted to tbe jury there was verdict that plaintiffs were owners and entitled to tbe possession of tbe described property, that defendants were in tbe wrongful possession, and that plaintiffs were entitled to recover of defendants damages therefor. From judgment on tbe verdict defendants appealed.

Smith •& Walker for plaintiffs, appellees.

J. G. Prevette for defendants, appellants.

Devin, J.

Tbe defendants’ denial in their answer of plaintiffs’ title to tbe property described in tbe complaint was sufficient to raise an issue, and to impose upon tbe plaintiffs tbe burden of showing title in themselves, in order to maintain their action. On this issue in support of .their allegations tbe plaintiffs offered deed to themselves from Mattie L. Auman, dated 14 January, 1946; deed to Mattie L. Auman from Howard S. Auman and others, heirs of Frank Auman, dated June, 1943; deed to Frank Auman from ~W. M. Green and wife, dated 1 August, 1938; deed to W. M. Green from Geo. W. Ehvett and wife, dated 12 March, 1934. Tbe plaintiff Leonard A. Teel testified that when be and bis wife purchased tbe bouse and lot in 1946 it was occupied by tbe defendant Mrs. O. I. Johnson; that be demanded possession and gave her and her bus-band written notice to vacate. This they refused to do.

There was no evidence of adverse possession of tbe property on tbe part of tbe plaintiffs or those under whom they claim, nor any evidence of title other than tbe introduction of tbe deeds mentioned. It is apparent that plaintiffs have failed to offer sufficient evidence to carry tbe case to tbe jury on this primary issue, and that defendants’ motion for judgment of nonsuit should have been allowed. Graybeal v. Davis, 95 N. C., 508; Motley v. Griffin, 104 N. C., 112, 10 S. E., 142; Prevatt v. Harrelson, 132 N. C., 250, 43 S. E., 800; Moore v. Miller, 179 N. C., 396, 102 S. E., 627; Smith v. Benson, 227 N. C., 56, 40 S. E. (2d), 451. Tbe denial of defendant’s motion for judgment of nonsuit on tbe evidence offered must be held for error, and tbe judgment

Reversed.