{
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  "name": "LURANIA M. MIDGETT, NORA M. HERBERT, ELLERY C. MIDGETT, BETHANY M. GRAY, HERBERT MIDGETT, DALLAS MIDGETT, ELIZA M. EDWARDS, ROWENA MIDGETT, JOHN A. MIDGETT, MARTHA TOWNSEND, PHOEBE HAYMAN, ADDIE MATHIS, NATALIE MANDELL and BEVERLY MIDGETT v. ARETTA MIDGETT",
  "name_abbreviation": "Midgett v. Midgett",
  "decision_date": "1969-06-18",
  "docket_number": "No. 691DC238",
  "first_page": "74",
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    "judges": [
      "Beitt and Paeicek, JJ., concur."
    ],
    "parties": [
      "LURANIA M. MIDGETT, NORA M. HERBERT, ELLERY C. MIDGETT, BETHANY M. GRAY, HERBERT MIDGETT, DALLAS MIDGETT, ELIZA M. EDWARDS, ROWENA MIDGETT, JOHN A. MIDGETT, MARTHA TOWNSEND, PHOEBE HAYMAN, ADDIE MATHIS, NATALIE MANDELL and BEVERLY MIDGETT v. ARETTA MIDGETT"
    ],
    "opinions": [
      {
        "text": "Mallard, C.J.\nIn this action for the recovery of land and for trespass thereon the allegations of plaintiffs as to their title and the trespass of the defendant are denied. It was then incumbent upon plaintiffs to establish both the issue of ownership and the issue of trespass. Locklear v. Oxendine, 233 N.C. 710, 65 S.E. 2d 673, Andrew's v. Bruton, 242 N.C. 93, 86 S.E. 2d 786.\nIn Andrews v. Bruton, supra, it is said:\n\u201cIt seems appropriate to call attention to certain well-established rules. Their allegations as to title having been denied, it was incumbent upon plaintiffs to establish both ownership and trespass. Norman v. Williams, 241 N.C. 732, 86 S.E. 2d 593, and cases cited. Whether relying upon their deeds as proof of title or of color of title, they were required to locate the land by fitting the description in the deeds to the earth\u2019s surface. G.S. 8-39; Locklear v. Oxendine, 233 N.C. 710, 65 S.E. 2d 673, Parsons v. Lumber Co., 214 N.C. 459, 199 S.E. 626. In the absence of title or color of title, they were required to establish the known and visible lines and boundaries of the land actually occupied for the statutory period. Carswell v. Morganton, 236 N.C. 375, 72 S.E. 2d 748.\u201d\nNotwithstanding the allegation in the complaint that plaintiffs owned the ten-acre tract described therein and the defendant\u2019s denial of that allegation, the parties at the trial apparently by stipulation narrowed the dispute to the question of the ownership of the land described on \u201cplaintiffs\u2019 map\u201d within the letters A-B-E-F. Such a stipulation appears in the charge of the court. Appellants in their brief state, \u201cThe controversy is narrowed to ownership of the land A-B-E-F on plaintiffs\u2019 map as stated in the charge.\u201d In plaintiffs\u2019 brief it is also stated, \u201cIt was stipulated that E-F represents the south boundary of defendant\u2019s claim.\u201d Plaintiffs and defendant claim title from a common source.\nIt is highly desirable in the trial of a lawsuit involving the location of disputed boundary lines to have one map showing thereon the contentions of all the parties. When one map shows the contentions of one party and not the other, it is extremely difficult, and often impossible, to determine the contentions of the parties. In this case there were five maps introduced, none of which specifically show the contentions of the parties with respect to the location of the land they claim in relation to the land claimed by the opposing parties. However, the stipulations helped to clarify this confusion co some degree but not to any appreciable extent. One of the maps is drawn on a scale of 100 feet to the inch, two are drawn on a scale of 150 feet to the inch, one is drawn on a scale of 60 feet to the inch, and the other doesn\u2019t reveal on what scale it is drawn. When reading the legend on the maps, north is indicated to the reader\u2019s left on one, toward the bottom of the page on two of them, and toward the top of the page on the other two. None of the maps reveal that they were prepared for the purpore of showing the contentions of the parties in this particular lawsuit.\nAssignment of error number 1 is based on exceptions numbered 1 through 13. Exceptions numbered 1, 2, 3, 4, 6, 7, 11, 12, and 13 do not appear anywhere in the record except under this assignment of error and therefore they will, not be considered. Rule 21 of Rules of Practice in the Court of Appeals. The Supreme Court has repeatedly held that exceptions not duly noted and appearing only under the purported assignments of error will not be considered. 1 Strong, N.C. Index 2d, Appeal and Error, \u00a7 24; State v. Hewett, 270 N.C. 348, 154 S.E. 2d 476.\nHowever, exceptions numbered 5, 8, 9, and 10 under assignment of error number 1 relate to the admission by the court of a map prepared by the witness Sinclair, a surveyor, and the testimony of the witness Sinclair as to the location of the lands in controversy and the lands shown on a map in a subdivision known as Holiday Shores. We think that the map of the Holiday Shores subdivision prepared by the witness Sinclair was competent evidence in this case to illustrate the testimony of the witness and that it was competent for the witness Sinclair to testify as to the location of the lands in controversy in relation to the Holiday Shores subdivision. In 25 Am. Jur. 2d, Ejectment, \u00a7 106, pp. 609-610 the rule is stated as follows:\n\u201cThe identity or location of the land may be shown by documentary evidence, such as plats, surveys, and field notes. A map made by a surveyor of the premises sued for' and of other tracts adjacent thereto, when proved to be correct, is admissible to illustrate other testimony in the case and throw light on the location of the land in controversy; and a draft of a survey, proved to be correct, is admissible in evidence as explanatory of what the surveyor testified he had done in making the survey.\u201d\nAssignments of error numbered 2 through the two assignments of error numbered 5 in the record (the latter of which is numbered 6 in the brief) are based on exceptions numbered 14 through 19. These assignments of error and the exceptions on which they are based are not properly before us because these exceptions do not appear anywhere in the record except under the assignments of error. They will not be considered.\nAssignment of error number 7 is based on exception number 20. It is deemed abandoned because it is not set out in. appellant\u2019s brief, and no reason or argument is stated or authority cited in support thereof. Rule 28 of the Rules of Practice in the Court of Appeals.\nAssignment of error number 8 is based on exceptions 21 and 22. These exceptions are not presented because they are not properly numbered as required by Rule 21. There are no exceptions numbered 21 and 22 in this record on appeal other than under the purported assignment of error.\nPlaintiffs requested the court, at the conclusion of the evidence, to charge the jury as follows:\n\"In deliberating on your verdict you should not be influenced by what the effect of the verdict may be upon the continued ownership of the restaurant building. You should render your verdict in accordance with the facts and the applicable law and should your verdict be for the plaintiffs, the Court will then follow- established procedure in determining the disposition of the building.\u201d\nThe court did not so charge, and the plaintiffs except. In their brief plaintiffs cite no authority for their position. Under the circumstances of this case, when the charge is read as a whole, we do not think that the failure of the trial judge to so instruct the jury resulted in prejudicial error to the plaintiff.\nPlaintiffs complain that the judge in his charge said, \u201cIn the absence of - specific request, I shall not attempt to review the evidence which has been presented you.\u201d In the case of Sugg v. Baker, 258 N.C. 333, 128 S.E. 2d 595, the Supreme Court held that even though the parties waive a recapitulation of the evidence, such waiver does not relieve the judge of the duty under G.S. 1-180 to state the evidence of the respective parties to the extent necessary to enable him to explain the application of the law thereto. The parties are not required to make a request that the judge comply with the provisions of G.S. 1-180. The judge may not escape this duty imposed upon him by the statute, either by specific waiver of the parties, or by attempting to place the burden upon counsel to make such a request. If the judge had done what he said he was going to do and had not reviewed the evidence, he would have committed prejudicial error; however, after a careful review of the charge as a whole, we are of the opinion that the judge did recapitulate the evidence to the extent necessary to enable him to explain the applicable law.\nThe remainder of plaintiffs\u2019 assignments of error relate to the instructions given by the court to the jury and the submission of the second issue. \u25a0\nPlaintiffs in order to recover had the burden of proving their title to the disputed area by any one of the various methods set out in Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142. Plaintiffs sought to show title to the lands in question by possession under a record title. Unless some error was made in the trial- relating to the first issue and plaintiffs\u2019 title, errors, if any in the charge with respect to defendants\u2019 title, would not seem prejudicial to plaintiff. Paper Company v. Jacobs, 258 N.C. 439, 128 S.E. 2d 818.\nWhile the charge does not appear to be a model one, when viewed as a whole, it seems to be favorable to plaintiffs. The court instructed the jury in connection with the first issue, among other things:\n\u201cAs far as record title is concerned, the claim of the plaintiff and that of the defendant stems from the same source; namely, Edward Payne, Jr. and, as far as record title is concerned, the plaintiff\u2019s title to the land in question is superior or better than the defendant\u2019s title, since the deed under which the plaintiff\u2019s claim, recorded in Book C, page 91, Dare County Registry, was filed on June 25, 1888, and the deed under which defendant claims is recorded in Book 6, page 295, Dare County Registry, and was filed on November 4, 1926. ... If the plaintiffs have satisfied you that the land in question is the land described in the deed, it would be your duty to answer the first issue yes. If they have not so satisfied you, it would be your duty to answer that issue no. If you answer the first issue yes, then that would end the lawsuit; if you answer the first issue no, then you would proceed to the second issue, . . .\u201d\nIt can be seen that the judge expressed an opinion favorable to plaintiffs in telling the jury that plaintiffs\u2019 title was superior or better than defendants. The instruction that if the land in question was the land described in the deed that it would be the duty of the jury to answer the first issue yes was error in favor of the plaintiffs. \u201cIn an ejectment action a plaintiff must offer evidence which fits the description contained in his deeds to the land claimed. That is, he must show that the very deeds upon which he relies convey, or the descriptions therein contained embrace within their bounds, the identical lands in controversy.\u201d Skipper v. Yow, 238 N.C. 659, 78 S.E. 2d 600. Under the instructions of the court on the first issue, the jury was told that the plaintiffs\u2019 title to the land in question was superior or better than the defendant\u2019s and that if the land in question was the land described in the deed that they should answer the issue yes. The plaintiffs cannot complain because the instructions were more favorable to them than they were entitled. The jury has found by its verdict that the land in controversy was not described in plaintiffs\u2019 deed. In order to recover plaintiffs must rely upon the strength of their own title.\nWe have carefully examined each of the assignments of error which the plaintiffs have brought forward. We do not find any error that is prejudicial to the plaintiffs.\nNo error.\nBeitt and Paeicek, JJ., concur.",
        "type": "majority",
        "author": "Mallard, C.J."
      }
    ],
    "attorneys": [
      "Leroy, Wells, Shaw & TIornthal by Dewey W. Wells for plaintiff appellants.",
      "No Counsel and no Brief for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "LURANIA M. MIDGETT, NORA M. HERBERT, ELLERY C. MIDGETT, BETHANY M. GRAY, HERBERT MIDGETT, DALLAS MIDGETT, ELIZA M. EDWARDS, ROWENA MIDGETT, JOHN A. MIDGETT, MARTHA TOWNSEND, PHOEBE HAYMAN, ADDIE MATHIS, NATALIE MANDELL and BEVERLY MIDGETT v. ARETTA MIDGETT\nNo. 691DC238\n(Filed 18 June 1969)\n1. Ejectment \u00a7 7\u2014 issues of title and trespass \u2014 burden of proof\nIn action in ejectment to try title, where the plaintiffs\u2019 allegations as to their title and the trespass of defendant are denied, it is incumbent upon plaintiffs to establish both the issue of ownership and the issue of trespass.\n2. Boundaries \u00a7 18\u2014 maps \u2014 contentions of litigants\nIt is highly desirable in the trial of a lawsuit involving the location of disputed boundary lines to have one map showing thereon the contentions of all the parties.\n3. Appeal and Error \u00a7 24\u2014 form of exceptions\nExceptions which appear nowhere in the record except under the purported assignments of error will not be considered. Court of Appeals Rule No. 21.\n4. Ejectment \u00a7 9\u2014 competency of evidence \u2014 maps\nIn action in ejectment, a map prepared by the witness, a surveyor, of the land in controversy is competent evidence to illustrate the testimony of the witness as to the location of the land.\n5. Appeal and Error \u00a7 45\u2014 the brief \u2014 discussion of assignment of error\nAssignment of error not set out in appellant\u2019s brief and in respect of which no reason or argument is stated or authority cited will be deemed abandoned. Court of Appeals Rule No. 28.\nd. Appeal and Error \u00a7 24\u2014 numbering of exceptions\nExceptions not properly numbered as required by Court of Appeals Rule No. 21 are ineffectual.\n7. Trial \u00a7 33\u2014 instructions \u2014 statement of evidence \u2014 waiver\nEven though the parties waive a recapitulation of the evidence, such waiver does not relieve the judge of the duty to state the evidence of the respective parties to the extent necessary to enable him to explain the application of the law thereto. G.S. 1-180.\n8. Trial \u00a7 32\u2014 instructions \u2014 compliance with G.S. 1-180\nThe parties are not required to mate a request that the judge comply with G.S. 1-180.\n9. Trial \u00a7 33\u2014 instructions \u2014 statement of evidence\nAlthough trial judge in his charge stated that in the absence of a specific request he would not attempt to review the evidence, no prejudicial error is shown where it appears from a review of the charge as a whole that the judge did recapitulate the evidence to the extent necessary to enable him to explain the applicable law.\n10. Ejectment \u00a7 10\u2014 action in ejectment \u2014 instructions on title\nWhere plaintiffs in ejectment action sought to show title to the land in question by possession under a record title, any errors in the charge with respect to defendant\u2019s title are not prejudicial to plaintiffs, unless some error was made relating to plaintiffs\u2019 title.\n11. Ejectment \u00a7 10\u2014 action in ejectment \u2014 plaintiffs\u2019 superior title \u2014 instructions\nWhere plaintiffs in ejectment action sought to show title to the lands in question by possession under a record title, plaintiffs cannot complain of instructions to the effect that (1) plaintiffs\u2019 title is superior or better than defendant\u2019s title and (2) the jury should answer the issue of plaintiffs\u2019 ownership in the affirmative if plaintiffs have satisfied them that the land in question was the land described in plaintiffs\u2019 deed, since the instructions were more favorable to plaintiffs than they were entitled.\n12. Ejectment \u00a7 10\u2014 action in ejectment \u2014 proof \u2014 description in deed\nIn an ejectment action, a plaintiff must offer evidence which fits the description contained in his deeds to the land claimed.\nAppeal by plaintiffs from Privott, JDecember 1968 Civil Session of the District Court of DaRE County.\nThis action in ejectment was instituted on 22 November 1967 by plaintiffs claiming ownership and right to possession of a tract of land containing approximately ten acres located on the shore of Pamlico Sound on Hatteras Island at the Village of Rodanthe. Plaintiffs allege that defendant has and is continuing to trespass on said lands. Plaintiffs requested a jury trial.\nDefendant filed answer denying plaintiffs\u2019 title and right to possession and asserted that the lands described in the complaint \u201cnow lie in Pamlico Sound.\u201d By way of further answer and defense defendant asserted she owns and is and has been since September 27, 1940 in the \u201copen, actual notorious, exclusive, uninterrupted, peaceable and adverse possession\u201d of a tract of land formerly owned by and known as the Edward Paine Tract and \u201c(t)hat should any portion of the land described in the complaint and alleged to be owned by plaintiffs be a part of the Edward Paine Tract as described above, which defendant denies, then the provisions of G.S. 1-38, adverse possession under color of title, is specifically pleaded as a bar to plaintiff\u2019s action.\u201d In the prayer for relief defendant does not ask that she be declared the owner of and entitled to the possession of the lands described in her answer although she does pray for \u201csuch other and further relief as to the Court may seem just and proper.\u201d\nWithout objection issues were submitted to and answered by the jurors as follows:\n\u201c1. Are the plaintiffs the owners of the land lying within the boundaries A-B-E-F as shown on plaintiffs\u2019 map?\nAnswer: No\n2. Is the defendant the owner of the lands lying within the boundaries A-B-E-F as shown on plaintiffs\u2019 map?\nAnsweR: Yes\u201d\nFrom the entry of a judgment holding, among other things, that 'the defendant \u201cis the owner in fee simple of and entitled to the possession of the lands lying within the boundaries A-B-E-F as shown on plaintiffs\u2019 map, marked and identified in the record as Plaintiffs\u2019 Exhibit PX-1, . . .\u201d, plaintiffs assign error and appeal to the Court of Appeals.\nLeroy, Wells, Shaw & TIornthal by Dewey W. Wells for plaintiff appellants.\nNo Counsel and no Brief for defendant appellee."
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