{
  "id": 8525756,
  "name": "LEOLIA B. BROTHERS, Widow, HILDA B. THOMPSON and husband, HENRY THOMPSON, JEAN B. COLEMAN and husband, MAURICE COLEMAN, JANICE BROTHERS, Unmarried, LEOLIA B. CHERRY and husband, DENNIS CHERRY, FLOYD BROTHERS and wife, GERALDINE BROTHERS, CLIFFORD L. BROTHERS and wife, BETTY BROTHERS, DWIGHT BROTHERS and wife, CAROLYN BROTHERS, DORA B. LEE and husband, ULYSSES LEE, ERMA B. JONES and husband, WILLIAM JONES, and WAYMOND BROTHERS, Unmarried v. RUDOLF HOWARD and wife, LOUVENIA HOWARD",
  "name_abbreviation": "Brothers v. Howard",
  "decision_date": "1982-06-15",
  "docket_number": "No. 811DC1107",
  "first_page": "689",
  "last_page": "692",
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    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name": "N.C."
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  "analysis": {
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  "last_updated": "2023-07-14T20:31:38.946391+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges VAUGHN and HILL concur."
    ],
    "parties": [
      "LEOLIA B. BROTHERS, Widow, HILDA B. THOMPSON and husband, HENRY THOMPSON, JEAN B. COLEMAN and husband, MAURICE COLEMAN, JANICE BROTHERS, Unmarried, LEOLIA B. CHERRY and husband, DENNIS CHERRY, FLOYD BROTHERS and wife, GERALDINE BROTHERS, CLIFFORD L. BROTHERS and wife, BETTY BROTHERS, DWIGHT BROTHERS and wife, CAROLYN BROTHERS, DORA B. LEE and husband, ULYSSES LEE, ERMA B. JONES and husband, WILLIAM JONES, and WAYMOND BROTHERS, Unmarried v. RUDOLF HOWARD and wife, LOUVENIA HOWARD"
    ],
    "opinions": [
      {
        "text": "MARTIN (Harry C.), Judge.\nThe trial court erred in allowing defendants\u2019 motion for directed verdict at the close of plaintiffs\u2019 evidence on plaintiffs\u2019 cause of action to quiet title.\nFirst, the Real Property Marketable Title Act provides that the establishment of a marketable record title in any person pursuant to the statute shall be prima facie evidence that such person owns title to the real property described in his record chain of title. N.C. Gen. Stat. \u00a7 47B-2(d) (Supp. 1981). Plaintiffs have established a marketable record title to the land in dispute by the introduction of the deed from C. L. Albertson and wife, Rose Albertson, to Floyd Brothers, recorded 11 September 1943, more than thirty years prior to the institution of this action. N.C. Gen. Stat. 47B-2(a). The evidence supports a conclusion that plaintiffs have a marketable record title. See Kennedy v. Whaley, 55 N.C. App. 321, 285 S.E. 2d 621 (1982).\nDefendants argue that the Act does not apply because their rights to the property in dispute come within the exceptions contained in N.C.G.S. 47B-3(4). Defendants, however, have the burden of proof on the issue of whether their rights come within the statutory exceptions. Plaintiffs\u2019 evidence does not establish that defendants are protected by the exceptions, and defendants have yet to introduce their evidence.\nWe hold that plaintiffs have made out a prima facie case under the statute sufficient to overcome defendants\u2019 motion for directed verdict at the close of plaintiffs\u2019 evidence. Lea v. Dudley, 20 N.C. App. 702, 202 S.E. 2d 799 (1974).\nWe also hold that plaintiffs have established a prima facie case of their title to the property in dispute, under the common source of title rule. Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142 (1889). Defendants argue that the common source of title rule does not apply because the property in question was reserved from the lands granted to plaintiffs and defendants by C. L. Albertson, their common source of title. Vance v. Pritchard, 213 N.C. 552, 197 S.E. 182 (1938). Defendants, however, have stipulated that the parties do have a common source of title to the property in question. Defendants\u2019 chain of title from that common source has not been introduced into evidence. Plaintiffs\u2019 deed conveying the property from the common source is in evidence.\nDefendants stipulated that the property in dispute, a part of Joe\u2019s Island, was owned by C. L. Albertson, who is the common source of title for plaintiffs\u2019 and defendants\u2019 property. They also stipulated the authenticity of the deed from C. L. Albertson and wife, Rose Albertson, conveying the property in dispute to Floyd Brothers, plaintiffs\u2019 predecessor in title, on 11 September 1943. The common source of title rule applies and defendants cannot deny C. L. Albertson\u2019s title to Joe\u2019s Island. Vance, supra.\nThe question then becomes, which party has the better title from that common source. Plaintiffs have introduced their record title to the property. They are not bound to introduce defendants\u2019 chain of title in order to make out a case for the jury that they possess the better title. They do not have to show the invalidity of defendants\u2019 claim. Wells v. Clayton, 236 N.C. 102, 72 S.E. 2d 16 (1952); 5 A.L.R. 3d 375, \u00a7 7 (1966). Plaintiffs\u2019 evidence was sufficient to overcome defendants\u2019 motion for directed verdict on plaintiffs\u2019 action to quiet title.\nPlaintiffs failed to produce sufficient evidence on their claim for damages for wrongful cutting of timber. There is no evidence that defendants cut trees on plaintiffs\u2019 property, other than the one tree for which defendants paid plaintiffs. The court properly entered a directed verdict against plaintiffs\u2019 claim for damages.\nAffirmed in part; reversed in part.\nJudges VAUGHN and HILL concur.\n. For a discussion of the effect of the exceptions upon the marketable title rule, see Note, North Carolina\u2019s Marketable Title Act\u2014Will the Exceptions Swallow the Rule?, 52 N.C. L. Rev. 211 (1973).",
        "type": "majority",
        "author": "MARTIN (Harry C.), Judge."
      }
    ],
    "attorneys": [
      "Twiford, Trimpi, Thompson & Derrick, by John G. Trimpi, for plaintiff appellants.",
      "Cherry, Cherry and Flythe, by Joseph J. Flythe, for defendant appellees."
    ],
    "corrections": "",
    "head_matter": "LEOLIA B. BROTHERS, Widow, HILDA B. THOMPSON and husband, HENRY THOMPSON, JEAN B. COLEMAN and husband, MAURICE COLEMAN, JANICE BROTHERS, Unmarried, LEOLIA B. CHERRY and husband, DENNIS CHERRY, FLOYD BROTHERS and wife, GERALDINE BROTHERS, CLIFFORD L. BROTHERS and wife, BETTY BROTHERS, DWIGHT BROTHERS and wife, CAROLYN BROTHERS, DORA B. LEE and husband, ULYSSES LEE, ERMA B. JONES and husband, WILLIAM JONES, and WAYMOND BROTHERS, Unmarried v. RUDOLF HOWARD and wife, LOUVENIA HOWARD\nNo. 811DC1107\n(Filed 15 June 1982)\nQuieting Title \u00a7 2.2\u2014 directed verdict for defendants improper \u2014 plaintiffs established prima facie case\nIn an action to quiet title, the trial court erred in allowing defendants\u2019 motion for directed verdict at the close of plaintiffs\u2019 evidence where (1) plaintiffs established a marketable record title to the land in dispute by the introduction of the deed which was recorded more than 30 years prior to the institution of the action which, under the Real Property Marketable Title Act, G.S. 47B-2(d) (Supp. 1981), was prima facie evidence that plaintiffs owned title to the property, and (2) plaintiffs established a prima facie case of their title to the property in dispute under the common source of title rule.\nAppeal by plaintiffs from Chaffin, Judge. Judgment entered 10 June 1981 in District Court, PASQUOTANK County. Heard in the Court of Appeals 27 May 1982.\nPlaintiffs instituted an action to quiet title to a seven and one-half acre tract of land known as Joe\u2019s Island and to recover damages for the wrongful cutting of two trees on the property. Prior to trial, the parties stipulated to the following:\n1. Plaintiffs are the heirs at law of Floyd Brothers, who died intestate.\n2. The common source of the parties\u2019 title is C. L. Albertson and copies of all deeds in both plaintiffs\u2019 and defendants\u2019 chains of title are true and accurate.\n3. By deed dated 9 January 1915, C. L. Albertson and wife conveyed to Riley White a parcel of land containing two hundred and twenty-five acres \u201cexcepting therefrom ... a small Island containing seven acres, more or less, known as Joe\u2019s Island situate near Dailey\u2019s Landing.\u201d\n4. By deed recorded in book 108, page 599, Pasquotank County Registry, on 11 September 1943, C. L. Albertson and wife conveyed to Floyd Brothers a parcel of land \u201cknown as Joe\u2019s Island and being a part of the Ed Albertson Land. Said to contain seven and one-half acres (7-1/2) more or less . .\nAt the close of plaintiffs\u2019 evidence, the trial court granted defendants\u2019 motion for a directed verdict and dismissed the action, stating that \u201cthe plaintiffs had failed to offer sufficient evidence to establish, prima facie, plaintiffs\u2019 title to the lands in dispute . .\nTwiford, Trimpi, Thompson & Derrick, by John G. Trimpi, for plaintiff appellants.\nCherry, Cherry and Flythe, by Joseph J. Flythe, for defendant appellees."
  },
  "file_name": "0689-01",
  "first_page_order": 719,
  "last_page_order": 722
}