51 S.E. 784 | N.C. | 1905
This suit was brought for the purpose of having vacated and (32) canceled a grant issued by the State to the defendant in 1888 for 176 1/2 acres of land, upon the ground that the land was not the subject of entry and grant, as it was swamp land and was vested in the plaintiff, the State Board of Education, who had conveyed the same to its coplaintiff, The Alleghany Company, and therefore the grant was a cloud on the title of said company. Issues were submitted to the jury which, with the answers thereto, are as follows: 1. Are plaintiffs the owners and in possession of the land set out and described in the complaint and referred to in the answer as the land contained in an alleged grant to defendant? 2. Does defendant wrongfully assert title to said land under a grant from the State, of date 1888, thereby putting a cloud on plaintiff's title? 3. Is the defendant the owner and in possession of said land? Yes. 4. Do plaintiffs wrongfully assert title to said land under the deeds exhibited from Clark to Brooks and Leach, and from Scranton Company to Alleghany Company, thereby putting a cloud on defendant's title, and also under deed from State Board of Education to Alleghany Company? Yes.
Plaintiffs opened the case and introduced much evidence tending to show that the land in controversy is swamp land, and some of the defendant's witnesses testified to the same effect. Charles Polson, one of plaintiff's witnesses, testified that it was low boggy swamp, covered with water moss, and in order to contradict him, and also perhaps to show that it was not swamp land, the defendant's counsel was permitted on cross-examination to ask the witness if the land in dispute was not naturally drained through the Bishop tract, which lay between it and the *56
creek and which is high and dry land and cultivated as a farm. The answer of the witness tended to show that the Bishop land adjoined the tract described in the complaint and lay between it and Broad (33) Creek and that a ridge of that tract is under cultivation; that it is high land and tillable, and only that part of it is dry and used as a farm, and the ridge is the only part that could be cultivated. The other facts are stated in the opinion.
Whether it was not relevant for defendant to show by the witness, Polson, the general topography of the country immediately surrounding the tract in dispute or the conformation of contiguous tracts, as bearing upon the character of the tract in question, and whether this evidence is of the same class as that excluded in Warren p. Makely,
The plaintiffs assign as error his Honor's instruction that the jury must be satisfied by the greater weight of the evidence that the land described in the complaint is "swamp land," before they could find for the plaintiffs, thereby placing the "burden of proof" upon them. We think this was a proper instruction, under the pleadings and the facts of this *57 case. Plaintiffs allege that they are the owners of this tract because it is swamp land. The Board of Education (as successor to the President and Directors of the Literary Fund, Const., Art. IX, sec. 10; Code, sec. 2506), could not establish any right or title to the land by virtue of the statute (Rev. Code, sec. 66; Const., Art. IX, sec. 10; Code, sec. 2506), investing it with the title to the "swamp lands" in the State as a part of the trust property to be held by it for the benefit of education, unless it could show that the lands claimed by it were of that description. Could a plaintiff resting his right to the title or possession of land on a deed conveying, or a will devising, to him the swamp land in a certain larger tract described therein, recover any part of the land without showing that it comes within the particular description of the deed or will? The Board does not acquire title, by virtue of the statute, to all of the lands of the State, but only to its "swamp lands."
It is alleged in the complaint and virtually admitted in the answer that the plaintiff, the Alleghany Company, is in possession of the land claiming under a deed from the Board of Education, who asserted title to the land, under the statute, as swamp land. Assuming that this possession is presumed to be rightful and is sufficient, generally, to present a prima facie case, and to compel the defendant "to go forward" with his proof or take the risk of an adverse verdict of the jury, (35) or an adverse ruling of the Court as to the law, we yet think as the plaintiffs further allege that they derived title to the land under the statute, by reason of the fact that it is swamp land and in no other way, they should be required to take the burden of establishing this fact, so essential to the successful maintenance of their suit. This is not an action to recover the realty, but is brought for the avowed purpose of removing a cloud from the plaintiffs' alleged title and for that purpose to have vacated and canceled the grant issued by the State to the defendant. Plaintiffs are therefore, as we have said, the actors, and they allege the affirmative of the issue to be the truth of the matter. McCormick v.Monroe,
The last objection of the plaintiffs is equally untenable. They requested the Court to charge the jury that if they believed the evidence they should answer the issues "yes" or in favor of the plaintiffs. The evidence as to the character of the land was not all one way. When *60 such an instruction is requested, the adverse party is entitled to have the evidence considered most strongly in his favor and all facts which it reasonably tends to prove for him must be considered as established, and any part of the evidence which tends to disprove the plaintiffs' contention must be taken as true, as in case of a demurrer to evidence or motion to nonsuit. The testimony of Makely, Manning, Bishop and Spencer, especially that of the last named witness, tended to show that the land was not of that kind generally called and known as swamp land. The instruction therefore was not a proper one. It is unnecessary to decide whether Laws 1891, ch. 302, applies to the defendant's grant which was issued prior to its passage, as plaintiffs' counsel conceded that the Court had charged the jury in accordance with the provisions of that act. The provisions of section 2527 of The Code did not apply (39) to the case unless the plaintiffs showed that the land was a swamp, for the section refers only to that kind of land. His Honor charged correctly in regard to the presumption created by that section of The Code, and we can discover no error in the remaining portions of the charge to which the plaintiffs' other exceptions were taken. They are covered by what has already been said and require no separate discussion, except the one relating to the manner of answering the issues. This depended, as his Honor told the jury, upon how they should answer the first issue. If they found that the land was swamp land, when the grant was taken out, and consequently answered the first issue "yes," it followed logically that they should answer the other issues in favor of the plaintiffs, but if they found the other way and answered the first issue "no," they should for the same reason answer the other issues, as they did, in favor of the defendant, and the Court so instructed them. The charge was very full and clear and the law applicable to the different aspects of the case was in every particular correctly stated.
No error.
HOKE, J., did not sit on the hearing of this appeal.
Cited: Moore v. McClain,