{ "id": 8620999, "name": "SARAH CLARK SMITH and Husband, LEON SMITH, v. C. L. BENSON and G. W. HESTER", "name_abbreviation": "Smith v. Benson", "decision_date": "1946-12-11", "docket_number": "", "first_page": "56", "last_page": "59", "citations": [ { "type": "official", "cite": "227 N.C. 56" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "225 N. C., 535", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612651 ], "opinion_index": 0, "case_paths": [ "/nc/225/0535-01" ] }, { "cite": "42 S. E., 957", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "133 N. C., 491", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "34 S. E., 701", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "125 N. C., 596", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274827 ], "opinion_index": 0, "case_paths": [ "/nc/125/0596-01" ] }, { "cite": "92 N. C., 319", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273633 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/92/0319-01" ] }, { "cite": "88 N. C., 326", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683134 ], "opinion_index": 0, "case_paths": [ "/nc/88/0326-01" ] }, { "cite": "102 S. E., 627", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "179 N. C., 396", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656022 ], "opinion_index": 0, "case_paths": [ "/nc/179/0396-01" ] }, { "cite": "43 S. E., 800", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "132 N. C., 250", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658691 ], "opinion_index": 0, "case_paths": [ "/nc/132/0250-01" ] }, { "cite": "10 S. E., 142", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "104 N. C., 112", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650704 ], "opinion_index": 0, "case_paths": [ "/nc/104/0112-01" ] }, { "cite": "218 N. C., 154", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614845 ], "opinion_index": 0, "case_paths": [ "/nc/218/0154-01" ] } ], "analysis": { "cardinality": 486, "char_count": 8614, "ocr_confidence": 0.479, "pagerank": { "raw": 2.3193486333393297e-07, "percentile": 0.7898074366497815 }, "sha256": "cefc8d8dea3f439e18d9080aaa5b338b8383cd91ce396a3e20de4bca210ae010", "simhash": "1:1b634255b00ac353", "word_count": 1537 }, "last_updated": "2023-07-14T16:20:04.384970+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "SARAH CLARK SMITH and Husband, LEON SMITH, v. C. L. BENSON and G. W. HESTER." ], "opinions": [ { "text": "Winborne, J.\nIs there error in tbe judgment as of nonsuit from which this appeal is taken ? This is tbe sole question for consideration,\u2014 and tbe answer is No.\nWhere in an action for tbe recovery of land and for trespass thereon defendant denies plaintiff\u2019s title and defendant\u2019s trespass, nothing else appearing, issues of fact arise both as to title of plaintiff and as to trespass by defendant, \u2014 the burden of proof as to each being on plaintiff. Mortgage Corp. v. Barco, 218 N. C., 154, 10 S. E. (2d), 642.\nIn such an action plaintiff must rely upon tbe strength of bis own title. This requirement may be met by various methods which are specifically set forth in Mobley v. Griffin, 104 N. C., 112, 10 S. E., 142; Prevatt v. Harrelson, 132 N. C., 250, 43 S. E., 800; Moore v. Miller, 179 N. C., 396, 102 S. E., 627, and many other decisions.\nMoreover, in all actions involving title to real property title is conclusively presumed to be out of tbe State unless it be a party to tbe action, G. S., 1-36, but \u201cthere is no presumption in favor of one party or tbe other, nor is a litigant seeking to recover land otherwise relieved of tbe burden of showing title in himself.\u201d Moore v. Miller, supra.\nIn tbe light of that presumption plaintiffs in the present action, assuming the burden of proof, elect to show title.in themselves by adverse possession, under known and visible lines and boundaries and under color of title for seven years, G. S., 1-38, which is one of the methods by which title may be shown. In pursuing this method a deed offered as color of title is such only for the land designated and described in it. Davidson v. Arledge, 88 N. C., 326; Smith v. Fite, 92 N. C., 319; Barker v. R. R., 125 N. C., 596, 34 S. E., 701; Johnston v. Case, 133 N. C., 491, 42 S. E., 957.\nIn Smith v. Fite, supra, tbis beadnote epitomizes tbe opinion of Smith, C. J., for tbe Court: \u201cWhere a party introduces a deed in evidence, which be intends to be used as color of title, be must prove that its boundaries cover tbe land in dispute, to give legal efficacy to bis possession.\u201d In other words, tbe plaintiff must not only offer tbe deed upon which be relies, but be must by proof fit tbe description in tbe deed to tbe land in question.\nWhile tbe present action is for tbe recovery of land and for trespass thereon, tbe controversy seems to binge around tbe location of tbe disputed line known as tbe Sam Blank\u2019s line. And as to tbis, tbe testimony of tbe surveyor A. A. Eobbins, appointed by tbe court, tends to show that be did not attempt to run tbe line. Furthermore, there is no evidence in tbe record showing its location.\nTbis case is unlike processioning proceeding wherein when a bona fide dispute arises between landowners as to tbe true .location of tbe boundary line between them, tbe case may not be dismissed as in case of nonsuit. Cornelison v. Hammond, 225 N. C., 535, 35 S. E. (2d), 633.\nTbe judgment below is\nAffirmed.", "type": "majority", "author": "Winborne, J." } ], "attorneys": [ "H. H. Clark and Edward B. Clark for plaintiffs, appellants.", "Robert J. Hester, Jr., and McLean & Stacy for defendants, appellees." ], "corrections": "", "head_matter": "SARAH CLARK SMITH and Husband, LEON SMITH, v. C. L. BENSON and G. W. HESTER.\n(Filed 11 December, 1946.)\n1. Ejectment \u00a7 15\u2014\nWhere, in an action to recover possession of real property and damages for trespass thereon, defendant denies plaintiff\u2019s title and defendant\u2019s trespass, nothing else appearing, plaintiff has the burden of proving title in himself and trespass by defendant.\n3.Ejectment \u00a7 10\u2014\nIn an action involving title to real property, the State not being a party, title is conclusively presumed out of the State without presumption in favor of either party, G. S., 1-36, and plaintiff must rely upon the strength of his own title.\n3. Ejectment \u00a7 17\u2014\nWhere, in an action for the recovery of real property in which defendant denies plaintiff\u2019s title, plaintiff seeks to establish title by adverse possession under color, but fails to offer evidence fitting the description, in the deed relied on as color of title to the land in dispute, nonsuit is proper.\n4. Adverse Possession \u00a7 9c\u2014\nA deed is color of title only for the land designated and described therein.\n5. Ejectment \u00a7 17\u2014\nNonsuit is properly entered in an action involving title to real property upon failure of plaintiff to establish title to the land in question, the action being unlike a processioning proceeding which may not be dismissed as in case of nonsuit.\nAppeal by plaintiffs from Williams, J., at April Term, 1946, of BladeN.\nCivil action to recover land and for damages for trespass tbereon.\nPlaintiff alleges in bis complaint that be is tbe owner in fee simple of a certain tract or parcel of land containing 101 acres, more or less, in \"Whites Creek Township, Bladen County, North Carolina, specifically described, including among other calls, this one: \u201cthen with the various courses of the old survey as described in a deed from John McNorth to Israel Moore, Henry Spaulding and Samuel Blanks, dated February 28, 1893, and duly recorded in Book of Deeds iAA,\u2019 pp. 109, records of Bladen County, reference to which is hereby made, and made a part hereof for a full and accurate description,\u201d and that defendants have trespassed upon said land to the damage of plaintiff in stated amount.\nDefendants, answering, deny in the main the allegations, of the complaint, and aver that if the court should find that plaintiffs own the tract of land described in the complaint, and the description therein contained covers any part of the lands of the defendants, therein described and claimed by defendants, then they deny plaintiffs\u2019 ownership of that part thereof. And for a further answer and defense, defendants set up ownership of the lands, to which they assert claim as above stated, by reason of adverse possession particularly under the seven year statute, the twenty year statutes, and the thirty year statute.\nUpon the trial plaintiff offered in evidence these exhibits: (1) A deed from A. 0. Trust and wife to A. A. Clark, dated 24 May, 1917, and registered 1 June, 1917, in Book 67 at page 502 of registry of Bladen County, purporting to convey a tract of land of same description as that set forth in the complaint herein.\n(2) A deed from A. A. Clark to Sarah Clark, dated 5 March, 1937, and registered 9 March, 1937, in book 96 at page 251 of registry of Bladen County, purporting to convey \u201ca certain tract of land containing 101 acres more or less, and being the same land conveyed by A. 0. Trust to A. A. Clark by deed dated May 24, 1917, and recorded in the office of the Register of Deeds of Bladen County in Deed Book 67, on page 502.\u201d\n(3) A survey of the disputed line, made by Bullard and Robbins, surveyors, in August, 1945.\nPlaintiff also offered the testimony of A. A. Clark, who testified that he entered into possession of the land he bought from A. O. Trust at the time he bought it, at which time there were no improvements on it; that he has since cleared up probably 10 or 20 acres of the land and built a house and tobacco barn on it; that he has cut and removed timber within the past two years and before that time \u201cwood for tobacco barns and such\u201d; that since conveying the land to his daughter, the plaintiff, Sarah Clark Smith, he has worked the land; had it worked; that he is familiar with the lines and boundaries of the land described in the complaint and has a map of the land made by Mr. Robbins; that C. L. Benson and G-. \"W. Hester entered upon the land and cut and removed some timber from the west side; that the deed referred to in the description in the Trust deed, and described in the complaint, containing the call as hereinabove set forth running \u201cthence with the various courses, etc.,\u201d was burned, and the record book was burned; that when Mr. Robbins and Mr. Bullard made the survey he pointed out to them the McNortb line and tbe beginning corners; and that \u201ctbe disputed line is known as tbe Sam Blank\u2019s line.\u201d\nPlaintiff further offered tbe testimony of A. A. Robbins, surveyor appointed by tbe court, whose testimony tends to show that be did not attempt to run tbe line described in tbe deed \u201cthence with tbe various courses of tbe old survey as described in a deed from John McNortb to Israel Moore, Henry Spaulding and Samuel Blank.\u201d\nDefendants, reserving exception to refusal of tbe court to grant their motion for judgment as of nonsuit at close of plaintiff\u2019s evidence, offered evidence in support of their contentions and claims.\nAnd motion of defendants for judgment as of nonsuit at tbe close of all tbe evidence was allowed and judgment signed.\nPlaintiffs appeal to Supreme Court and assign error.\nH. H. Clark and Edward B. Clark for plaintiffs, appellants.\nRobert J. Hester, Jr., and McLean & Stacy for defendants, appellees." }, "file_name": "0056-01", "first_page_order": 104, "last_page_order": 107 }