Mrs. Annie P. NORMAN, Widow, Glenn Norman, a Minor, under the age of 21 years without General Guardian, herein appearing by S. S. Norman, her duly appointed Next Friend, and L. G. Travis and his wife, Doris Travis,
v.
John J. WILLIAMS.
No. 164.
Supreme Court of North Carolina.
March 30, 1955.*596 George C. Green, Weldon, Dickens & Dickens, Scotland Neck, for plaintiffs appellants.
Johnson & Branch, Enfield, Banzet & Banzet, Warrenton, for defendant appellee.
WINBORNE, Justice.
Appellants state in their brief that the questions involved on this appeal are: "1. Did the court err in sustaining the defendant's motion for judgment of nonsuit? 2. Did the court err in entering the judgment which appears of record?" In the light of the record and the evidence appearing in the case on appeal, the answer to each of these questions must be "No". The evidence fails to make out a prima facie showing of title in plaintiffs.
To sustain an action for trespass by cutting timber, plaintiff must allege and show that he is the owner of the land from which the timber was cut. Johnson v. Eversole Lumber Co., 147 N.C. 249, 60 S.E. 1129.
And where in an action for the recovery of land and for trespass thereon defendant denies plaintiff's title and defendant's trespass, nothing else appearing, issues of fact arise both as to the title of plaintiff and as to trespass by defendant,the burden of proof as to each issue being on plaintiff. Federal Farm Mortgage Corp. v. Barco, 218 N.C. 154, 10 S.E.2d 642; Smith v. Benson, 227 N.C. 56, 40 S.E.2d 451; Locklear v. Oxendine, 233 N.C. 710, 65 S.E.2d 673; Williams v. Robertson, 235 N.C. 478, 70 S.E.2d 692; McDonald v. McCrummen, 235 N.C. 550, 70 S.E.2d 703; Meeker v. Wheeler, 236 N.C. 172, 72 S.E.2d 214; Powell v. Mills, 237 N.C. 582, 75 S.E.2d 759.
In such action plaintiff must rely upon the strength of his 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, and applied in 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, *597 some of the late ones being Smith v. Benson, supra; Locklear v. Oxendine, supra; Williams v. Robertson, supra; McDonald v. McCrummen, supra; Meeker v. Wheeler, supra; Powell v. Mills, supra.
Moreover, in all actions involving title to real property, title is conclusively presumed to be out of the State unless it be a party to the action, G.S. § 1-36, but "There is no presumption in favor of one party or the other, nor is a litigant seeking to recover land otherwise relieved of the burden of showing title in himself." See Williams v. Robertson, supra, and cases cited. See also Powell v. Mills, supra.
However, testing the evidence in the case by these rules, it does not appear that plaintiffs have brought their case within any of them. If they intend to invoke the sixth rule, that is, to show a common source of title, and in themselves a better title from that source, Stewart v. Cary, 220 N.C. 214, 17 S.E.2d 29, 144 A.L.R. 1287, the evidence does not connect defendant with any source of title common to both, and is, therefore, insufficient. Hence the question as to the effect of the recitals in the Sheriff's deed is not reached. But compare the cases of McDonald v. McCrummen, supra, and Meeker v. Wheeler, supra, and cases cited.
On the other hand, if plaintiffs would rely upon adverse possession under known and visible lines and boundaries, under color of title, the evidence is vague and insufficient in either situation. In pursuing this method of proving title, a deed offered as color of title is such for only the land designated and described in it. See Locklear v. Oxendine, supra; Powell v. Mills, supra, and cases cited.
Apparently this action has been prosecuted under misapprehension of applicable principles of law.
In the light of this opinion, if proof be available, plaintiffs may yet make out a prima facie title in a new action. See last paragraph in McDonald v. McCrummen, supra; Meeker v. Wheeler, supra.
But on this record, motion for judgment of nonsuit was properly allowed. Hence the judgment below is
Affirmed.
BARNHILL, C. J., and DEVIN, J., took no part in the consideration or decision of this case.