79 S.E. 445 | N.C. | 1913
This is a proceeding for the sale of land for partition and to pay the debts of the two original tenants in common out of the proceeds of sale, the balance to be divided among the tenants according to the several and respective interests. All parties have been duly brought into court by the service of process, as the court finds and adjudges in its order, 15 October, 1912. It was ascertained that one Henry Holloman claimed a one-third interest in the land, as heir to Nancy Holloman, daughter of *108 himself and his wife, Rachel Holloman (formerly Rachel Evans), who was the daughter of John Evans and his wife, Harriet Evans (formerly Harriet McKeel), who was one of the original tenants in common. Henry Holloman's wife predeceased him.
The court, on motion, ordered that Henry Holloman be made a party, to the end that his claim might be determined and the land sold free from any claim upon the title. He was brought in, and pleaded that he was owner of one-third of the land. The court, thereupon, directed (134) the following issue to be submitted to the jury: "Has the defendant Henry Holloman any interest in the land?" Under the instructions of the court, the jury answered this issue in the negative. There was no objection to the issue. Judgment on the verdict, and appeal by Henry Holloman, the intervenor. The other facts are stated in the opinion of the court.
After stating the case: We find no error in the record. The court properly ordered or permitted Henry Holloman to be made a party. The Code provides that any person may be made a party who has or claims an interest in the controversy adverse to the plaintiff, or whose presence is necessary to a complete determination or settlement of the questions involved therein, and any person claiming title or right of possession to real estate may be made a party, as the case may require, to any such action. Revisal, sec. 410. When a complete determination of the matter cannot be had without the presence of other parties, the court must cause them to be brought in. Revisal, sec. 414. The power to make an adverse claimant a party to proceedings for the sale of land for assets, as this is in part, is expressly recognized. Revisal, sec. 76. It would be strange if it were not so under our wise and liberal system of procedure, which seeks to settle all controverted matters in one action and without circumlocution; and further, it is better for all parties concerned that it should be so, in an action of this kind, in order that a good title to the land may be sold, as it will secure a better price. The order being valid, the issue, submitted without objection, both in form and substance necessarily placed the burden of proof upon Henry Holloman, who asserted his title and ownership to a one-third interest in the property, and the judge ruled correctly in this respect. Holloman virtually admitted that plaintiffs had the other two-thirds interest, and the whole, if he is not their cotenant; and the real question was (135) whether they were entitled to the whole or to only two-thirds. Their proof tended to show, and at least made out a prima facie
case, that they were entitled to all of it. One test by which to determine *109
where the burden of proof rests has been said to be, which party would be successful, in law, if no evidence or no more evidence were given.Amos v. Hughes, 1 M. Rob., 464. This Court has once adopted the rule laid down by Taylor, for it says in Walker v. Carpenter, 144 N.C. at p. 676, quoting from Bailey's Onus Probandi, p. 2: "In every mode of litigation an assertion of fact avails nothing without proof. Some party to it must commence by producing proof to sustain his allegation. The first rule laid down in the books on evidence is to the effect that the issue must be proved by the party who states an affirmative, not by the party who states a negative. Of course, such affirmative must be one in substance and not merely in form. An eminent writer on the law of evidence says: `This rule of convenience, which in the Roman law is thus expressed, Ei incumbit probatio, qui dicit, non qui negat, has been adopted in practice, not because it is impossible to prove a negative, but because the negative does not admit of the direct and simple proof of which the affirmative is capable, and moreover, it is but reasonable and just that the party who relies upon the existence of a fact should be called upon to prove his own case.'" See, also, Cox v. Lumber Co.,
As the burden was upon Holloman, he failed to show any title. He relied on the will of R. D. S. Dixon, but as the evidence by which he offered to show his interest, under the will, was properly excluded, there was nothing left upon which his claim could stand. There was no sufficient identification of the land described in the will. Some of the evidence rejected did not have sufficient probative force to show what land it was. There was no evidence that Dixon owned the land. *110
The undisputed evidence of plaintiffs shows that they are the owners of the land. If Holloman ever had any interest as tenant in common with them, he lost it by their adverse possession for more than twenty years, he admitting that he did not make any claim to be let into possession of his share, nor any demand for his share of the rents and profits within said time. Dobbins v. Dobbins,
It may be well to say before concluding, that the court had a discretion to exclude leading questions, and we will not review the ruling for that reason.
We may safely place our decision upon the single ground that the answer of Holloman shows that the title of his adversaries is not denied unless he is owner of one-third as tenant in common, and it further appears in the case that they have held possession of the premises adversely, and have been in the pernancy of the rents and profits for more than twenty years, title being out of the State, and he has taken no steps to recover possession of his alleged share, or his share of the rents and profits, within that time, although he had visited them occasionally. If they kept him out of possession of his share of the land and the rents, he was put to his action, and if not prosecuted within the twenty years, the law raised a legal presumption of title in those having the possession and barred his entry. Dobbins v. Dobbins, supra; Bullin v. Hancock,
No error.
Cited: Brogden v. Gibson,
