{
  "id": 8601949,
  "name": "MARIE BARRETT v. JOHN T. WILLIAMS et al.",
  "name_abbreviation": "Barrett v. Williams",
  "decision_date": "1940-02-28",
  "docket_number": "",
  "first_page": "175",
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    "id": 9292,
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  "last_updated": "2023-07-14T22:38:29.672243+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "MARIE BARRETT v. JOHN T. WILLIAMS et al."
    ],
    "opinions": [
      {
        "text": "Stacy, C. J.\nThis is the same case that was before us on defendants\u2019 appeal at the Spring Term, 1939, reported in 215 N. C., 131, 1 S. E. (2d), 366, when a new trial was ordered for error in directing a verdict for the plaintiff. Reference to the previous report of the case will suffice for statement of the principal facts.\nThe present record differs from the one on the former appeal in two particulars:\n1. Upon the hearing \u201cit was agreed and stipulated that the testator, J. S. Jones, left him surviving 5 children, to wit, Mrs. Josephine Spence, George Jones, Samuel Jones, Neut A. Jones, and S. Gertrude Sweet, who was the mother of the plaintiff.\u201d\n2. It is conceded that defendants\u2019 possession of the lands in dispute since 1900 has been \u201copen, notorious, continuous and exclusive.\u201d\nThe pivotal point on the defendants\u2019 claim of title by adverse possession goes back to the character of Newton A. Jones\u2019 possession in 1879. If he entered into possession of the locus in quo, claiming it, pro hac vice, as devisee under his father\u2019s will \u2014 and there is some evidence of this \u2014 then his possession and those claiming under him up to the time of his death would be permissive rather than adverse to plaintiff\u2019s rights under the ulterior limitation. Moreover, the tax foreclosure proceeding instituted after the death of Newton A. Jones is evidence in support of plaintiff\u2019s contention that while defendants\u2019 possession has been \u201copen, notorious, continuous and exclusive,\u201d since 1900, nevertheless it has not been adverse to her rights, but rather in subordination to the legal title. Hill v. Bean, 150 N. C., 436, 64 S. E., 212; Shaffer v. Gaynor, 117 N. C., 15, 23 S. E., 154.\nThen,- again, in respect of defendant\u2019s claim of title by adverse possession, the burden of proof rests upon the defendants. Hayes v. Cotton, 201 N. C., 369, 160 S. E., 453. It is rarely, if ever, permissible for the court to direct a verdict in favor of a party upon whom rests the burden of proof. Reed v. Madison County, 213 N. C., 145, 195 S. E., 620; Yarn Mills v. Armstrong, 191 N. C., 125, 131 S. E., 416; House v. R. R., 131 N. C., 103, 42 S. E., 553; Cox v. R. R., 123 N. C., 604, 31 S. E., 848; Eller v. Church, 121 N. C., 269, 28 S. E., 364.\nIt also appears, contrary to the former record, that the testator, J. S. Jones, died leaving him surviving five children. This would become important in case the jury should find that Newton A. Jones entered into possession of the forfeited estate claiming it other than in subordination to the provisions of the will.\nOn the record as presented, there was error in directing a verdict for the defendants.\nNew trial.",
        "type": "majority",
        "author": "Stacy, C. J."
      }
    ],
    "attorneys": [
      "McMullan & McMullan for plaintiff, appellant.",
      "M. B. Simpson and John II. Hall for defendants, appellees."
    ],
    "corrections": "",
    "head_matter": "MARIE BARRETT v. JOHN T. WILLIAMS et al.\n(Filed 28 February, 1940.)\n1. Adverse Possession \u00a7\u00a7 4g, 19 \u2014 Directed verdict in favor of defendant claiming by adverse possession held error.\nThe land in question was devised to defendant\u2019s grantor by defeasible fee, which was defeated by the death of the grantor without issue. However, the devise was void because the grantor was a witness to the will. There was evidence that the grantor, nevertheless, went into possession claiming as devisee under the will. Held: If the grantor went into possession claiming under the will his possession and the possession of defendant claiming under him would be permissive and not adverse to the contingent remainderman up to the time of the grantor\u2019s death, and further, tlie burden being upon defendant to prove title by adverse possession, a directed verdict in Ms favor is erroneous.\n2. Adverse Possession \u00a7 18 \u2014 Evidence held competent to show that claimant recognized termination of right to possession upon termination of his grantor\u2019s defeasible fee.\nThe land in question was devised to defendant\u2019s grantor by defeasible fee, which was defeated by the death of the grantor without issue. However, the devise was void because the grantor was a witness to the will. After the grantor\u2019s death, defendant permitted the land to be sold for taxes and bought in by his wife with money furnished by him. Hold: The tax foreclosure is some evidence that defendant\u2019s possession was not adverse to the person claiming under the contingent remainderman, but that the possession was in subordination to the legal title.\n3. Trial \u00a7 27b\u2014\nIt is rarely, if ever, permissible for the court to direct a verdict in favor of a party upon whom rests the burden of proof.\nAppeal by plaintiff from Thompson, J., at January Term, 1940, of PASQUOTANK.\nCivil action in ejectment and for redemption and accounting.\nFrom a directed verdict in favor of defendants, the plaintiff appeals, assigning errors.\nMcMullan & McMullan for plaintiff, appellant.\nM. B. Simpson and John II. Hall for defendants, appellees."
  },
  "file_name": "0175-01",
  "first_page_order": 241,
  "last_page_order": 243
}