Johnson v. . Johnson
50 S.E.2d 569
N.C.
1948
Check Treatment
ERVIN, J.

Thе trial judge committed error favorable to plaintiffs in imposing upon the defendants, B. C. Johnson, Mrs. Trib Johnson, and R. M. Johnson, the burden of establishing by the greater weight of the evidence that Mrs. Nancy Johnson did in fact sign, seal, and deliver the deed, which was admitted to registration on 20 March, 1920. An analysis of the pleadings in the light of relevant lеgal principles and authorities makes this observation indisputably clear.

The question as to whether the burden of proof rests with a plaintiff or a defendant is determined from the pleadings before the introduction of evidence. 20 Am. Jur., Evidence, section 136. Plaintiff has the burden of proof with respect to all elements of his claim or cause of action. Bank v. Construction Co., 203 N. C. 100, 164 S. E. 621. What he must allege, he must prove. Hood v. Cobb, 207 N. C. 128, 176 S. E. 288. He is even required to make proof of his negative allegations if they are essential to the establishmеnt of his case. Hood v. Cobb, supra; S. v. Connor, 142 N. C. 700, 55 S. E. 787; 31 C. J. S., Evidence, section 105. “Whenever, whether in plea or replication or rejoinder or surre-joinder, an issue of fact is reached (says 2 Wharton Ev., sec. 354), then, ‍‌​‌​​‌​‌‌‌​‌​​​‌​​‌‌​​​​​‌‌​‌​​‌​‌​​​‌‌‌​​​‌​​‌​‍whether the party claiming the judgment of the court asserts an affirmative or negative proposition, he must make good his assertion. On him liеs the burden of proof.” Cook v. Guirkin, 119 N. C. 13, 25 S. E. 715.

The question as to which party to an action has the burden of proof with respect to either a particular issue or the еntire case finds solution *545 through the application to the pleadings of a simple test. The burden of proof lies upon the person who will he defeаted as to the particular issue or the entire case if no evidence relating thereto is given on either side. Huneycutt v. Brooks, 116 N. C. 788, 21 S. E. 558; Coffman v. Spokane Chronicle Pub. Co., 65 Wash. 8, 117 P. 596, Ann. Cas. 1913 B 636; 20 Am. Jur., Evidence, section 135; 31 C. J. S., Evidence, section 104.

The plaintiffs claimed judgment for partition of the land in controversy upon a petition making the essential averment that they and the defendants оwned such lands as tenants in common. G.S. 46-3. When the defendants, ‍‌​‌​​‌​‌‌‌​‌​​​‌​​‌‌​​​​​‌‌​‌​​‌​‌​​​‌‌‌​​​‌​​‌​‍B. C. Johnson, Mrs. Trib Johnson, and R. M. Johnson, denied the plaintiffs’ allegation of co-tenancy and pleaded sole seizin in themselves, the law cast upon the plaintiffs the burden of showing title as alleged, i.e., the tenancy in common. Davis v. Crump. 219 N. C. 625, 14 S. E. (2) 666; Bailey v. Hayman, 218 N. C. 175, 10 S. E. (2) 667; Talley v. Murchison, 212 N. C. 205, 193 S. E. 148; Lester v. Harvard, 173 N. C. 83, 91 S. E. 698; Huneycutt v. Brooks, supra.

The answer of the defendants did not plead the existence or record of the alleged deed from Mrs. Nancy Johnson to B. 0. Johnson as an affirmative defense or otherwise. But the plaintiffs rightly realized as a practical matter that the record of the deed was a lion in their path, barring their claim to an interest in the land. In consequence, they filed a reply in which they disclоsed the existence, probate and registration of the deed, and alleged in substance that the deed was a forgery, and prayed that it “be declared by the court to be null and void and of no effect.” To all intents and purposes, the reply of the plaintiffs injected a new cause of action into the case, i.e., a cause of action for the cancellation of the record of a forged deed as a cloud on the title of the plаintiffs to undivided interests in the land. Byerly v. Humphrey, 95 N. C. 151; Annotation : 78 A. L. R. 182.

This was new matter. Manifestly, the burden of showing that the deed was a forgery devolved upon the plaintiffs under the pleadings in the case аt bar for the reason that the nonexecution of the instrument by the supposed grantor constituted an essential element of their claim or cause of action. The reply of the plaintiffs disclosed the existence of the alleged deed and the fact that it had been probated and registered. The probate and registration gave rise to the rebuttable presumption that the instrument had been duly signed, sealed, and delivered by the purported grantor. Best v. Utley, 189 N. C. 356, 127 S. E. 337. Thus, the plaintiffs would have suffered defeat on the issue as to the execution ‍‌​‌​​‌​‌‌‌​‌​​​‌​​‌‌​​​​​‌‌​‌​​‌​‌​​​‌‌‌​​​‌​​‌​‍of the deed if no evidence had been offered on either side with respect thereto.

This conclusion is sanctioned by repeated decisions of this Court holding that the burden of proving his assertion of nonexecution rests on a *546 plaintiff who seeks to establish a claim to land upon an allegation that the grantor named in a probated and registered deed regular on its facе did not in fact execute the instrument. Besides, the same cases clearly establish the rule that a party claiming title under such probated and registered dеed can call to his aid the rebuttable presumption that the supposed grantor executed such deed whenever the instrument is subjected to attack on an allegation of nonexecution without regard to whether he be the plaintiff or the defendant. These propositions find full support in these authоrities: Bank v. Griffin, 207 N. C. 265, 176 S. E. 555; Gulley v. Smith, 203 N. C. 274, 165 S. E. 710; Best v. Utley, supra; Faircloth v. Johnson, 189 N. C. 429, 127 S. E. 346; McMahan v. Hensley, 178 N. C. 587, 101 S. E. 210; Rogers v. Jones, 172 N. C. 156, 90 S. E. 117; Lee v. Parker, 171 N. C. 144, 88 S. E. 217; Linker v. Linker, 167 N. C. 651, 83 S. E. 736; Buchanan v. Clark, 164 N. C. 56, 80 S. E. 424; Fortune v. Hunt, 149 N. C. 358, 63 S. E. 82; Smithwick v. Moore, 145 N. C. 110, 58 S. E. 843; Helms v. Austin, 116 N. C. 751, 21 S. E. 556.

The trial judge was understandably misled on the question of the burden of proof as to the execution of the deed in issue by a too literal reliance upon certain language in Belk v. Belk, 175 N. C. 69, 93 S. E. 726; Jones v. Coleman, 188 N. C. 631, 125 S. E. 406; and Burton v. Peace, 206 N. C. 99, 173 S. E. 4. In Belk v. Belk, the party claiming under the questioned deed was the plaintiff, and the broad statement that “the legislature . . . evidently intended that the burden as to due execution should ‍‌​‌​​‌​‌‌‌​‌​​​‌​​‌‌​​​​​‌‌​‌​​‌​‌​​​‌‌‌​​​‌​​‌​‍be imposed upon the party claiming under the deed, when there is an issue joined in regard to it calling for proof” was cоrrect as applied to him. The holding of the Court in Jones v. Coleman is correctly digested in the first headnote, which says that a plaintiff who attacks the validity of a probated and registered deed by an allegation of nonexecution must “sustain his contention by the greater weight of the evidence, and an instruction that he is required tо do so by clear, strong, and convincing proof is reversible error.” The remark near the conclusion of the opinion that “the burden of establishing the fact of the execution of the deed by the grantor was upon the defendant who claims under the deed” runs counter to the authorities cited in the opinion, was not necessary to the decision, and constituted an obiter dictum. 21 C. J. S., Courts, section 190. In Burton v. Peace, the defendant was not content to rest on the rebuttable presumption of execution raised by the probate and registration. lie undertook to establish it as a fact by the oral testimony of witnesses. Unfortunately for him, this evidence effectually rebuttеd the presumption by showing affirmatively that the deed in question had never been delivered. Consequently, verdict and judgment for the plaintiff was upheld. The inadvertent еxpression in the opinion to the effect that the presumption of execution arising from the probate and *547 registration of a deed does not аpply when the deed is offered by a plaintiff “for the purpose of attack” was not necessary to the determination of any question in the case, conflicted with the numerous decisions on the subject, constituted an obiter dictum, and cannot be accorded the force of an adjudication abrogating ‍‌​‌​​‌​‌‌‌​‌​​​‌​​‌‌​​​​​‌‌​‌​​‌​‌​​​‌‌‌​​​‌​​‌​‍the presumption in the area of its greatest usefulness.

The action of the trial court in placing the burden of proof as to the execution of the determinative deed on the wrong parties worked no injury to defendants in final result for the reason that the jury found that Mrs. Nancy Johnson actually signed, sealed, and dеlivered the instrument.

On this appeal, the plaintiffs assert with much earnestness that the case ought to be tried anew for other errors which they claim the court committed in admitting the testimony of the defendants and in charging the jury on the issue as to the making of the deed.

The present record impels us to adjudge any such errors to be harmless. Here, the burden of proving their allegation that the supposed grantor did not execute the deed in controversy rightly rested upon thе plaintiffs. No evidence was presented at the trial tending to sustain the truth of this essential averment. Hence, the plaintiffs were not entitled to a favorable decision in any event, the verdict returned by the jury was the only one justified by the evidence, and the judgment, rendered was correct on the merits. Clark v. Henrietta Mills, 219 N. C. 1, 12 S. E. (2) 682; Weatherman v. Ramsey, 207 N. C. 270, 176 S. E. 568; Ins. Co. v. Cates, 193 N. C. 456, 137 S. E. 324; Fulcher v. Lumber Co., 191 N. C. 408, 132 S. E. 9; Overton v. Highsmith, 191 N. C. 376, 131 S. E. 742.

As the record has not revealed an error affecting any substantial right of the plaintiffs, the judgment rendered in the court below will not be disturbed.

N o error.