CHAMBERS et al.
v.
CHAMBERS et al.
No. 752.
Supreme Court of North Carolina.
June 11, 1952.*58 Melvin H. Burke and George L. Burke, Jr., Roxboro, for plaintiffs, appellees.
B. I. Satterfield, Fuller, Reade, Umstead & Fuller, James L. Newsom, Durham, for defendants, appellants.
DEVIN, Chief Justice.
The defendants' appeal presents two questions: (1) Was there error in denying defendants' motion for judgment of nonsuit? (2) Was there error in declining to submit an issue as to adverse possession on the part of defendants under color of title?
1. There was no controversy over the fact that Joe P. Chambers, under whom the plaintiffs claim, at the time of his death in 1930, had been in possession of the land described, cultivating it, receiving the rents therefrom, listing and paying taxes thereon, making improvements and occupying it as *59 a separate home for himself and his family. There was also evidence that he laid out thereon a burial ground in which one of his wives was interred and in which he also was buried. One of the sons of Joe P. Chambers testified without objection that "Granddaddy bought the whole thing (226 acres) and said he was going to give Aunt Lula half the farm and my father the other half"; that there was a well defined line between the two divisions, and that the outer boundaries were known and visible; that John E. Chambers, who lived elsewhere, referred to this land as "Joe's place," and did not list it for taxation. There was also evidence for plaintiffs that Joe P. Chambers' possession was continuous, exclusive and uninterrupted for thirty years. G.S. § 1-40; Locklear v. Savage, 159 N.C. 236, 74 S.E. 347.
Defendants contended that Joe P. Chambers' possession was permissive and not adverse to John E. Chambers, his father, and offered evidence tending to support this view.
But considering plaintiffs' evidence in the light most favorable for them, as we must do on a motion to nonsuit, and the permissible inferences deducible from the facts shown, we think the evidence sufficient to carry the case to the jury and to present a question for their decision. Battle v. Battle, 235 N.C. 499, 70 S.E.2d 492; Grimes v. Bryan, 149 N.C. 248, 63 S.E. 106. The judge's charge to the jury was not sent up, but presumably he instructed the jury properly on all matters of law arising on the evidence and applicable to the issues. Riley v. Stone, 174 N.C. 588, 94 S.E. 434. The jury has accepted the plaintiffs' view and found from the evidence that Joe P. Chambers' possession of the land under known and visible lines and boundaries was adverse, and that it had continued for twenty years at the time of his death in 1930.
2. Defendants' second position is that if it be determined that Joe P. Chambers had acquired title by adverse possession at the time of his death, the defendants' father Garland Chambers shortly thereafter entered into possession of the land under an alleged will of John E. Chambers and continued in possession thereunder for seven years, vesting in him a valid title which descended to his heirs, the defendants in this case, G.S. § 1-38, and that the court erred in declining to submit an issue addressed to this contention. But we note that while there is an allegation in the answer that John E. Chambers left a will, (which was denied in the reply), no will or other paperwriting was offered in evidence to support the allegation of color. True, there appears as a defendants' exhibit a "purported" will of John E. Chambers, but this does not show that the paper was ever probated as the will of John E. Chambers, and was not offered in evidence. Hence the ruling of the court on the evidence presented, in the absence of any evidence of a colorable title and entry into possession thereunder, must be sustained. The evidence was insufficient to show adverse possession by defendants for twenty years. The entry of their ancestor was in August 1930, and this suit was instituted in September 1949. G.S. § 1-40.
No exception other than those herein discussed was referred to in defendants' brief. Rule 28.
We conclude that the ruling of the trial court on the questions now presented was correct, and that in the trial there was
No error.