{ "id": 8624618, "name": "MAE WILSON, MINNIE WILSON and RENA WILSON v. G. W. CHANDLER", "name_abbreviation": "Wilson v. Chandler", "decision_date": "1952-04-09", "docket_number": "", "first_page": "373", "last_page": "376", "citations": [ { "type": "official", "cite": "235 N.C. 373" } ], "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": "19 S.E. 2d 14", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "221 N.C. 53", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625969 ], "opinion_index": 0, "case_paths": [ "/nc/221/0053-01" ] }, { "cite": "93 S.E. 995", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "174 N.C. 445", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11254323 ], "opinion_index": 0, "case_paths": [ "/nc/174/0445-01" ] }, { "cite": "90 N.C. 50", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8685186 ], "opinion_index": 0, "case_paths": [ "/nc/90/0050-01" ] }, { "cite": "69 N.C. 217", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2085500 ], "pin_cites": [ { "page": "p. 239" } ], "opinion_index": 0, "case_paths": [ "/nc/69/0217-01" ] }, { "cite": "63 S.E. 2d 565", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "233 N.C. 240", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8602953 ], "opinion_index": 0, "case_paths": [ "/nc/233/0240-01" ] }, { "cite": "35 S.E. 470", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "126 N.C. 238", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659115 ], "opinion_index": 0, "case_paths": [ "/nc/126/0238-01" ] }, { "cite": "190 S.E. 725", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "211 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627289 ], "opinion_index": 0, "case_paths": [ "/nc/211/0431-01" ] }, { "cite": "132 S.E. 14", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "191 N.C. 401", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629475 ], "pin_cites": [ { "page": "p. 403" } ], "opinion_index": 0, "case_paths": [ "/nc/191/0401-01" ] }, { "cite": "11 S.E. 575", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "105 N.C. 272", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652660 ], "opinion_index": 0, "case_paths": [ "/nc/105/0272-01" ] }, { "cite": "80 N.C. 224", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8689529 ], "opinion_index": 0, "case_paths": [ "/nc/80/0224-01" ] } ], "analysis": { "cardinality": 471, "char_count": 9019, "ocr_confidence": 0.489, "pagerank": { "raw": 1.8052873675689256e-07, "percentile": 0.7170113006588416 }, "sha256": "890597929dd87f9d01b5abd840823cce08ad66b307fb76599f49d283ed82b3bb", "simhash": "1:2123cc9bf27e475f", "word_count": 1600 }, "last_updated": "2023-07-14T17:52:11.505162+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MAE WILSON, MINNIE WILSON and RENA WILSON v. G. W. CHANDLER." ], "opinions": [ { "text": "JohNson, J.\nThe trial court excluded the defendant\u2019s proffered testimony by which he sought to establish title to the locus in quo by adverse possession. The exclusion of this testimony forms the basis of the defendant\u2019s chief assignments of error.\nThe proffered testimony appears to have been excluded on the theory that the pleadings laid no foundation for its reception. The exceptions thus put to test the sufficiency of the defendant\u2019s answer.\nIt is alleged in paragraph 2 of the complaint: \u201cThat the plaintiffs are the owners in fee simple and in possession of\u201d certain described land.\nIn paragraph 2 of the answer it is stated: \u201cIn answer to paragraph 2 this defendant does not know the exact way that the plaintiffs deraign their title, but it is denied that the plaintiffs are the owners of the lands described in paragraph 2, if said lands in any way conflict with the lands of the defendant, and said paragraph is denied insofar as the same is inconsistent with the allegations hereinafter set forth in this answer.\u201d\nThe allegations further set forth in the answer are in part that the defendant is one of the heirs at law of L. E. Chandler, deceased, and that in an action by the heirs at law of L. E. Chandler against J. T. Wilson and others in the Superior Court of Yancey County, involving a boundary line dispute, a judgment was entered in 1923 establishing the boundary line. The answer contains these further specific averments: \u201cThat by said judgment it was decreed that J. T. Wilson and the other defendants in said action were \u2018declared to be the owners of that portion of the lands lying North and West of the black and red dotted line on the map hereto attached and running from 4 to 2 to 3, . . . The plaintiffs are adjudged to be the owners of all of the lands described in the complaint lying South and East of the line 4 to 2 to 3.\u2019 And reference is hereby made to Judgment Docket No. 7 at page 34 for said judgment which was rendered in 1923, and reference is likewise made to the map which was used at the time said action was tried. That, if the plaintiffs are claiming any lands lying South and East of the line shown on the above referred to map and running from 4 to 2 to 3, then the matter is res judicata and said judgment above referred to is hereby plead as an estoppel against the plaintiffs from asserting any claim of title to any land lying South and East of the above mentioned line.\n\u201c3. That in the above entitled cause, tried in the year 1923, the line established in said action, running from 4 to 2 to 3, ran with the top of a ridge and where an old rail fence had once been constructed; and after the Judgment of 1923, J. T. Wilson constructed a new fence along the top of said ridge and located the same where the old rail fence had stood and likewise located said fence in accordance with the verdict of the jury in 1923, which fence is now standing. At no time has this defendant cut any timber North or West of the top of said ridge, but this defendant, together with the heirs at law of L. E. Chandler, has been in the open, adverse and notorious possession of said lands up to the line established by the jury in 1923, have cultivated said lands up to the line so established. And, therefore, the three-year statute of limitations, being Section 1-52, General Statutes of North Carolina, 1943, is specifically plead in bar of the action of the plaintiffs; the seven-year statute of limitations, being Section 1-3S, General Statutes of North Carolina, 1943, is specifically plead in bar of the action of the plaintiffs; and the twenty-year statute of limitations, being Section 1-40, General Statutes of North Carolina, 1943, is specifically plead in bar of the action of the plaintiffs.\u201d\nThe plaintiffs offered in evidence the map attached to the 1923 judgment and also the court map made for use in the instant trial below. It would serve no useful purpose to incorporate either of the maps in this opinion. The following description of the line from \u201c4 to 2 to 3\u201d will suffice: The southern terminus of this line is at point \u201c4.\u201d From that point the line runs (without stated courses or distances but following the crest of a ridge) in a northeasterly direction to point \u201c2,\u201d which is located about N. 55 degrees E., approximately 900 feet from point \u201c4.\u201d From point \u201c2\u201d the line continues along the ridge (without stated courses or distances) to point \u201c3,\u201d which is located about N. 17 degrees E., approximately 300 feet from point \u201c2.\u201d\nThe plaintiffs also offered evidence tending to show that the defendant in 1948 entered upon and cut timber from a two-acre tract of the land described in the complaint, this tract being identified by the evidence and shown on the maps as being located south and west of the southern terminus of the \u201c4 to 2 to 3\u201d line referred to in the pleadings.\nIt thus appears from the map referred to in the answer and also from all the admitted evidence in the case that the plaintiffs do not claim any land lying south and east from the \u201c4 to 2 to 3\u201d line referred to in the defendant\u2019s answer. The land claimed by the plaintiffs is located south and west of that line. Accordingly, the answer of the defendant does not deny plaintiffs\u2019 allegation of ownership and possession of the land described in the complaint.\nIt is elementary that issues arise upon the pleadings, and if a material fact alleged in the complaint is not denied by the answer, such allegation, for the purpose of the action, is taken as true and no issue arises therefrom. G.S. 1-135; G.S. 1-159; Credit Corporation v. Saunders, ante, 369. The fact alleged stands admitted, \u201cand the effect of the admission is as available to the plaintiff as if found by the jury.\u201d Bonham v. Craig, 80 N.C. 224, top p. 227; Tucker v. Wilkins, 105 N.C. 272, 11 S.E. 575; McIntosh, North Carolina Practice and Procedure, Sec. 460, p. 475.\nLikewise, if a fact is alleged by one party and admitted by the other, no issue arises therefrom, \u201cand evidence offered in relation thereto is irrelevant.\u201d Lee v. Martin, 191 N.C. 401, p. 403, 132 S.E. 14; Little v. Rhyne, 211 N.C. 431, 190 S.E. 725; Geer v. Brown, 126 N.C. 238, 35 S.E. 470; Stansbury, N. C. Evidence, Sec. 177, p. 380 et seq.\nIt necessarily follows that the court below properly excluded the defendant\u2019s proffered testimony by which he was seeking to establish title by adverse possession to the two-acre tract lying south and west of the \u201c4 to 2 to 3\u201d line.\nIt is true the defendant set up the plea of adverse possession, but in doing so he did not extend the plea to cover the area where the timber was cut, \u2014 south and west of the \u201c4 to 2 to 3\u201d line, \u2014 to which his proffered proofs relate. Nor does it appear on the record that the defendant either sought or obtained leave to amend. (Perkins v. Langdon, 233 N.C. 240, 63 S.E. 2d 565.) Therefore he is bound by the pleadings. Credit Corporation v. Saunders, supra. \u201cProof without allegation is as ineffective as allegation without proof.\u201d McKee v. Lineberger, 69 N.C. 217, p. 239. See also McLaurin v. Cronly, 90 N.C. 50; Talley v. Harriss Granite Quarries Co., 174 N.C. 445, 93 S.E. 995; Whichard v. Lipe, 221 N.C. 53, 19 S.E. 2d 14.\nWe have examined the rest of the defendant\u2019s exceptive assignments of error and find them without merit. The pertinent principles of law appear to have been applied properly in a trial in which we find\nNo error.", "type": "majority", "author": "JohNson, J." } ], "attorneys": [ "R. W. Wilson, Bill Atkins, and W. E. Anglin for plaintiffs, appellees.", "George A. Shuford, Charles Hutchins, and Fonts \u25a0<& Watson for defendant, appellant." ], "corrections": "", "head_matter": "MAE WILSON, MINNIE WILSON and RENA WILSON v. G. W. CHANDLER.\n(Filed 9 April, 1952.)\n1. Trespass to Try Title \u00a7 3: Adverse Possession \u00a7 18\u2014\nWhere defendant, in an action for trespass, pleads adverse possession of a tract of land, but tbe allegations of tbe boundaries of such tract do not cover the land in dispute, defendant is not entitled to introduce evidence of adverse possession of the land in dispute, since such evidence is not predicated upon allegation.\n2. Pleadings \u00a7 25\u2014\nThe issues arise upon the pleadings, and if a material fact alleged in the complaint is not denied by the answer, such allegation, for the purpose of the action, is taken as true and no issue arises therefrom. G.S. 1-135, G.S. 1-159.\n3. Pleadings \u00a7 24c\u2014\nProof without allegation is as ineffective as allegation without proof, and evidence which is not predicated upon allegation is irrelevant.\nAppeal by defendant from Bobbitt, J., and a jury, at October Term, 1951, of YaNCey.\nCivil action to recover damages for alleged trespass on land and wrongful cutting and removal of timber.\nThese issues were submitted to the jury and answered as indicated:\n\u201cDid the defendant trespass upon the land of the plaintiffs and wrongfully cut and remove timber therefrom, as alleged in the complaint? Answer: \u2018Yes.\u2019\n\u201cWhat damages, if any, are the plaintiffs entitled to recover of the defendant? Answer: '$150.00.\u2019 \u201d\nFrom judgment entered upon the verdict, the defendant appealed, assigning errors.\nR. W. Wilson, Bill Atkins, and W. E. Anglin for plaintiffs, appellees.\nGeorge A. Shuford, Charles Hutchins, and Fonts \u25a0<& Watson for defendant, appellant." }, "file_name": "0373-01", "first_page_order": 423, "last_page_order": 426 }