Mayberry v. Campbell

16 N.C. App. 375 | N.C. Ct. App. | 1972

VAUGHN, Judge.

The complaint in the prior action makes no reference to possession by plaintiffs (Campbell) or trespass by defendants (Mayberry). It was an action to remove cloud from title cast under the provisions of G.S. 41-10. In the prior action, the Campbells alleged ownership of the land in question and that the Mayberrys were asserting a claim thereto which constituted a cloud on the Campbell title. Mayberrys filed answer denying Campbells’ title and alleging title in themselves. Mayberrys’ plea of title constituted an affirmative defense and not a counterclaim. Edwards v. Arnold, 250 N.C. 500, 109 S.E. 2d 205. They sought no affirmative relief and simply prayed that Campbells’ action be dismissed. In the prior action the burden was on the Campbells to prove (1) that they owned the land in controversy or some estate therein and (2) that defendants asserted some claim to the land adverse to their title. Wells v. Clayton, 236 N.C. 102, 72 S.E. 2d 16. That the Mayberrys were asserting a claim adverse to the Campbells’ title affirmatively appears on the face of the Mayberrys’ answer and no further proof thereof would have been required. The Campbells were not required to prove the invalidity and wrongfulness of the Mayberrys’ claim; such claim was necessarily wrongful if adverse to the true owner. Wells v. Clayton, supra. Therefore, the only question requiring answer which was necessary for determination of the prior action was whether the Campbells had proved title. As is set out in the opinion on the prior appeal, Campbell v. Mayberry, supra, plaintiffs failed to do so and the judgment dismissing their action was affirmed. The trial judge’s additional conclusion that the Mayberrys were the owners in fee was ordered stricken in accordance with the well-established principle that “[a] failure of one of the parties to carry his burden of proof on the issue of title does not, ipso facto, entitle the adverse party to an adjudication that title to the disputed land is in him.” Cutts v. Casey, 278 N.C. 390, 180 S.E. 2d 297. That this court ordered the conclusions that the Mayberrys were the owners in fee stricken from the judgment does not estop the Mayberrys from pursuing their present action.

It is true, of course, that a different question would be presented if a determination of the Mayberrys’ title had been necessary for disposition of the prior action or if they had put their title in issue by way of a counterclaim. If the Mayberrys had put their title in issue by way of a counterclaim, however, alternatives would have been available to them that were not available to them in the prior action. Although all the pleadings were filed prior to the effective date of the new Rules of Civil Procedure, the trial occurred thereafter. Among other things, the Mayberrys, on their counterclaim, could have availed themselves of the provisions of Rule 41 relating to voluntary and involuntary dismissals. See Rule 41(c). On appeal, upon determination that their evidence was insufficient as a matter of law, the case would have been remanded and the Mayberrys would have been entitled to move for a voluntary dismissal of their counterclaim without prejudice. King v. Lee, 279 N.C. 100, 181 S.E. 2d 400.

We further observe that, in this day of notice pleadings, the occasions will be very rare when a trial judge can make a determination as to whether a particular action is barred as res judicata by an examination of the pleadings and the prior judgment as was attempted here.

Reversed.

Judges Parker and Graham concur.