Opinion
(Filed 24 March, 1903.)
1. Adverse Possession — Evidence — Ejectment — The Code, Secs. 139, 140, 147.
In ejectment, the evidence that the grantor of the plaintiff had raked and hauled straw off the land in question, and that the father of the plaintiff had farmed on an acre or two thereon, is insufficient to show possession.
2. Adverse Possession — Evidence — Sheriff's Deeds — Ejectment — The Code, Secs. 139, 140, 147.
A deed of a sheriff to the grantor of a plaintiff in ejectment is no evidence of possession.
3. New Trial — Demurrer — Evidence — Laws 1897, Ch. 109 — Laws 1899, Ch. 131 — Laws 1901, Ch. 594 — Nonsuit.
Under Laws 1897, ch. 109, as amended, a new trial will be ordered when a motion to nonsuit has been improperly denied.
4. Nonsuit — Judgments — The Code, Secs. 142, 166 — Laws 1897, Ch. 109 — Laws 1899, Ch. 131 — Laws 1901, Ch. 594.
When a nonsuit is granted under Laws 1897, ch. 109, as amended, the plaintiff may bring a new action within one year.
ACTION by James Prevatt against Jackson Harrelson and others, heard by Robinson, J., and a jury, at Fall Term, 1902, of COLUMBUS. From a judgment for the plaintiff, the defendants appealed.
C. C. Lyon for plaintiff.
D. J. Lewis for defendants.
This was an action of ejectment. At the close (251) of the plaintiff's evidence the defendant demurred and moved to nonsuit plaintiff under the statute, and excepted to the refusal of the motion. As the defendant subsequently introduced evidence, this exception is waived by the terms of the statute. Chapter 594, Laws 1901.
At the close of all the evidence the defendant again demurred and moved to nonsuit under chapter 109, Laws 1897, as amended by above chapter 594, Laws 1901, and excepted to the refusal. In Mobley v. Griffin, 104 N.C. at p. 115, it is laid down that the plaintiff must prove his right to recover in an action of ejectment in one of six ways, as follows:
1. He may offer a connected chain of title, or a grant from the State, to himself.
2. Or, without showing any grant from the State, he may show open, notorious, continuous, adverse, and unequivocal possession under color of title in himself and those under whom he claims for twenty-one years.
3. He may show title out of the State by a grant to a stranger, and then (unconnected with such grant) open, notorious, continuous, and adverse possession under color of title in himself and those under whom he claims for seven years.
4. He may show as against the State possession under known and visible boundaries for thirty years or against individuals similar possession for twenty-one years. The Code, secs. 139 and 140.
5. He can prove title by estoppel by showing that the defendant was his tenant, or derived possession from his tenant. The Code, sec. 147.
6. He may connect defendant with a common source of title and show in himself a better title from that source.
The plaintiff failed to show title in himself in either of these ways. The only testimony as to acts of possession by plaintiff or those under whom he claims was that an agent of plaintiff's grantor had raked and hauled straw off the land one or two years, and that in 1881 plaintiff's father had farmed an acre or two of the land in controversy. This (252) was insufficient. Hamilton v. Icard, 114 N.C. 532; Shaffer v. Gaynor, 117 N.C. 15; McLean v. Smith, 106 N.C. 172.
The plaintiff claimed under a deed executed to him by John Prevatt in 1894. The court instructed the jury that the sheriff's deed to plaintiff's grantor, John Prevatt, in 1856, was some evidence of adverse possession in those under whom plaintiff claims. This was error, for there was no evidence of possession thereunder beyond that above stated, and there is no presumption of law that the purchaser took possession. It was also error to refuse the motion to nonsuit plaintiff under the statute.
In refusing the motion to nonsuit there was error for which, under the uniform practice of this Court, there must be a new trial. On such new trial, if the plaintiff can "mend his lick" by additional and sufficient evidence, well and good. He has not lost the land. If he cannot offer additional evidence, this, though a new trial in form, will be virtually a finality against him.
As the effect of chapter 109, Laws 1897, as amended by chapter 131, Laws 1899, and chapter 594, Laws 1901, is often presented, it may be well to repeat what we have said in Means v. R. R., 126 N.C. at p. 129 (which was cited and approved in Parlier v. R. R., 129 N.C. 262): "The rule stands now just as it did before the passage of chapter 109, Laws 1897, and the amendment of 1899, except that under this legislation it is discretionary with the defendant whether he will introduce evidence after the motion to dismiss, or not; while, before these acts, it was discretionary with the court whether it would allow the defendant to introduce evidence after resting his case and making the motion." This is the sole change made by the statute, and that change cannot affect the settled practice that when a motion to nonsuit (or a demurrer to evidence) is erroneously refused, a new trial has always been ordered. S. v. Adams, 115 N.C. at p. 784; S. v. Rhodes, 112 (253) N.C. at p. 858, are exactly in point, besides numerous cases in which it is taken as settled practice. The verdict and judgment being set aside, a trial de novo is necessary.
Still less does the statute affect the rights of the plaintiff against whom a nonsuit is ordered, for the statute was directed solely to the enlargement of the rights of the defendant, who formerly was cut off from introducing evidence in his defense after the overruling of his demurrer to the evidence, unless so allowed in the discretion of the court. S. v. Adams, 115 N.C. 775; S. v. Hagan, 131 N.C. 803. By the statute this is made discretionary with the defendant, who, in addition, if his exception at the close of all the evidence is overruled, can have that exception reviewed on appeal, notwithstanding the verdict of the jury is against him.
As to the plaintiff, from time immemorial he has had the right to take a nonsuit at any time before verdict. The statute was not intended to deprive him of this right by a motion at the close of the evidence. When a motion to nonsuit under the statute is made, the plaintiff's only mode of ascertaining that the court is of opinion that his evidence is insufficient is by the judgment allowing the motion. The statute authorizes an involuntary nonsuit, a judgment "as of nonsuit," but it is none the less a nonsuit in all its features. An action can only be dismissed for want of jurisdiction or failure of complaint to state a cause of action (Clark's Code, 3 Ed., p. 923), but never for want of evidence. In the latter case, as in all other cases of nonsuit, he can bring a new action within one year thereafter, if so advised. The Code, secs. 166 and 142; Keener v. Goodson, 89 N.C. 273. The Legislature terms it a "judgment as in case of nonsuit," sec. 1, ch. 109, Laws 1897, and this language is not (254) changed by either of the amendatory acts. A new action may be brought in all cases of nonsuit. Meekins v. R. R., 131 N.C. 1. An action dismissed in the nature of a nonsuit "does not deprive the plaintiff of bringing a new suit for the same cause of action." Skillington v. Allison, 9 N.C. 347; Long v. Orrell, 35 N.C. 123; Freshwater v. Baker, 52 N.C. 255; Straus v. Beardsley, 79 N.C. 59; Wharton v. Comrs., 82 N.C. 11; Halcombe v. Comrs., 89 N.C. 346. In this last case it is said: "The distinction is between non-action, a refusal on account of deficient necessary evidence, and positive action, a refusal founded upon evidence sufficient to determine the question of right and a decision upon the merits."
New trial.
Cited: Evans v. Alridge, 133 N.C. 380; Clegg v. R. R., 134 N.C. 756; Hood v. Tel. Co., 135 N.C. 627; Lassiter v. R. R., 137 N.C. 151; Hollingsworth v. Skelding, 142 N.C. 252, 5; Tussey v. Owen, 147 N.C. 338; Lumber Co. v. Harrison, 148 N.C. 334; S. v. Killian, 173 N.C. 794; Moore v. Miller, 179 N.C. 397.