Special proceeding instituted before the clerk for the partition of real estate.
The defendant answered, alleging sole seizin. She admitted the family relationship but pleaded that plaintiff is illegitimate. The answer having raised an issue of fact, the proceeding was transferred to the civil issue docket.
When the cause came on to be heard below, at the conclusion of the evidence for the plaintiff, the court, on motion of the defendant, entered judgment dismissing the action as of nonsuit. Plaintiff excepted and appealed. Defendant admits in her answer that Lucy Howell, mother of plaintiff and the defendant, died seized and possessed of the land described in the petition; that said Lucy Howell also had a son who predeceased her, leaving one child, Ezell Howell; that after the death of Lucy Howell, plaintiff and defendant and Arthur Howell, husband of Lucy Howell, executed and delivered to Ezell Howell a quitclaim deed for said land; that said Ezell Howell died intestate, without issue, seized and possessed of the premises. *Page 626
The plaintiff, having offered the admissions made in the answer, suggested that the burden shifted to the defendant. The court held that it was the duty of the plaintiff to go forward with the introduction of evidence. Plaintiff excepted and then offered additional evidence tending to show that she was born while her mother was living with one Jim Richardson as man and wife. She likewise offered evidence tending to show that Jason Howell, deceased brother of plaintiff and defendant and father of Ezell Howell, was born to Lucy Davis (Howell), prior to her marriage to Arthur Howell, and rested. Thereupon the judgment of nonsuit was entered.
The admissions offered by the plaintiff were sufficient to make out aprima facie case of joint ownership. At that time, while it had been alleged, there was no evidence tending to show that the plaintiff was born out of wedlock. We may concede that the burden rested upon the plaintiff to show that she was a tenant in common. Even so, at the time she rested there was no evidence of illegitimacy to be rebutted and there is no presumption that she was born out of wedlock. the defendant, having pleaded the bastardy of plaintiff in bar of her claim, notwithstanding the admitted relationship, must assume the burden on this phase of the case.
Furthermore, it appears from the evidence offered by plaintiff that the deceased brother, Jason Howell, was born out of wedlock, and that the plaintiff and defendant were the only children of Lucy Howell. If it is found as a fact that plaintiff is illegitimate, then the legitimacy or illegitimacy of the deceased brother should also be determined to the end that the respective rights of the parties may be fully adjudicated. Powersv. Kite, 83 N.C. 156.
The judgment below is
Reversed.