66 S.E. 345 | N.C. | 1909
The facts are stated in the opinion of the Court. The plaintiffs, as tenants in common, brought this action to recover a tract of land in Watauga County, containing 420 acres. The defendants denied the plaintiffs' title to the land described in the complaint, except two tracts, or "boundaries," as they are called by the defendants, containing together something more than forty acres, the metes and bounds of which are set forth in the answer. The defendant entered no disclaimer as to the rest of the land, consisting of many acres.
The court submitted issues, which, with the answers thereto, are as follows:
1. Are the plaintiffs, or either of them, the owners of and entitled to the possession of the land described in the complaint, or any part thereof? Answer: Yes; the plaintiffs are the owners and entitled to the possession of all the lands described in the complaint, except that 100-acre tract claimed by defendant, as shown on plat by red lines; and the lines of the plaintiffs should run with the lines of Hodges and (414) Harley, as shown on plat by purple line and dotted red lines.
2. What damages are the plaintiffs entitled to recover, if any? Answer: None.
The plaintiffs' counsel, upon the rendition of the verdict, requested the court, in due form and apt time, to tax the defendant with the costs. This motion was denied, and the plaintiffs excepted.
The plaintiffs requested the court to give three special instructions. The court gave the first and third of these instructions and refused to give the second, which was as follows:
"The burden is upon the defendant to locate the grant under which he claims title, and it is the duty of the defendant to locate his beginning corner by a preponderance of the evidence; and unless you find from the evidence that the defendant has established the pine as his beginning corner, then he must begin at some known corner of the tract to establish and locate his grant."
We discover no error in the refusal of the court to give this instruction. If it was not substantially given by the court in the third of the special instructions which were requested by the plaintiffs, we think the court properly rejected it. The plaintiffs must remember that in an action of ejectment — now, under our present procedure, an action to recover land — the burden rests upon the plaintiff to establish a title in *402
himself to the land, good against the world, or, at least, good against the defendant by estoppel, or by what we sometimes call an estoppel, though not strictly so, as it is a mere rule of practice or convenience by which the defendant is precluded from denying the plaintiff's title, because both claim from a common source and the plaintiff has the older title of the two, and when it is apparent that both parties acted in recognition of the common predecessor, in their chains of title, as being vested with the true title. Christenbury v. King,
But we are of the opinion that the judge erred upon the question of costs. As the defendants denied the title of the plaintiffs, and the right of possession of the plaintiffs to the entire tract, they were (415) necessarily required to prove their title and incur the costs and expense of so doing, and, under the able and clearly expressed opinion of Avery, J., speaking for the Court, in Moore v. Angel,
Modified and affirmed.
Cited: Bowen v. Perkins,