265 N.C. 214 | N.C. | 1965
Defendants have the senior paper title to the disputed land. Plaintiffs, however, claim title to it as a result of adverse possession for 7 years under color of title, G.S. 1-38, and also for 20 years, G.S. 1-40, yet they do not plead these statutes.
Plaintiffs assign as error the following portion of his Honor’s charge:
“He (plaintiff) contends that from all of the circumstances you should accept his contentions with respect to what happened and so accept them by the greater weight of the evidence. And, that phrase merely means that evidence outweighing any to the con*216 trary. If you shall so find you will answer the first issue ‘Yes,’ and if you were to fail to so find in that manner you would answer ‘No,’ and the defendant contends that you should.”
The assignment must be sustained. Here, and throughout the charge, his Plonor overlooked the requirement of G.S. 1-180 that the judge “shall declare and explain the law arising on the evidence in the case. ...” A mere statement of the contentions of the parties does not suffice. Therrell v. Freeman, 256 N.C. 552, 124 S.E. 2d 522. The judge at no time explained the law as it applies to a lappage, Whiteheart v. Grubbs, 232 N.C. 236, 60 S.E. 2d 101; Currie v. Gilchrist, 147 N.C. 648, 61 S.E. 581, nor did he attempt to apply that law to the evidence in the case.
The complaint in this action was verified May 4, 1962; the answer, “November ...., 1962.” The record contains no other clue as to when this action was instituted or the pleadings filed. The attention of the Bar is once again directed to Rule 19(1) as amended January 1, 1964, which requires, inter alia, that the filing date of every pleading, motion, affidavit, or other document included in the transcript on appeal shall appear. See 259 N. C. 753.
For the reason stated there must be a
New trial.
