Nancy PRUDEN, Mary P. Willis and husband, B. G. Willis; Virgie P. Phelps; W. Grady Pruden and wife, Sue Pruden
v.
J. B. KEEMER and wife, Ella Keemer.
No. 68SC101.
Court of Appeals of North Carolina.
June 19, 1968.*785 Pritchett, Cooke & Burch, by J. A. Pritchett, Windsor, for plaintiffs appellees.
James R. Walker, Jr., Weldon, for defendants appellants.
MALLARD, Chief Judge.
This action resolves itself into an action in trespass to try title; therefore, plaintiffs must allege and prove both title in themselves and trespass by defendants. 4 Strong, N.C.Index, Trespass to Try Title, § 1.
In their complaint plaintiffs allege fee simple title ownership of Lot No. 5 of the Jacob Pruden Estate Lands and trespass thereon by defendants; in their answer, defendants flatly deny these allegations.
Defendants' denial of plaintiffs' allegations of title and trespass places the burden on plaintiffs to establish each of these allegations. Day v. Godwin, 258 N.C. 465, 128 S.E.2d 814. Plaintiffs must rely on the strength of their own title, and prove their title by some method recognized by law. Tripp v. Keais, 255 N.C. 404, 121 S.E.2d 596; Day v. Godwin, supra. 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.
In his report the Referee recognized these principles of law and evidently concluded that plaintiffs had introduced sufficient evidence to come within Rule 6 in Mobley v. Griffin, supra. In paragraph 4 of his report the Referee states: "The chain of title of plaintiffs and defendants stems from a common source, namely, Jacob Pruden."
Defendants except to this particular finding of fact and contend that it is not supported by sufficient, competent evidence. The exception is well taken.
As a starting point in proving their title, plaintiffs introduced the Report of Commissioners and map in the partition proceeding of the Jacob Pruden Estate Lands, dated 18 January 1877, together with order confirming the report. In said proceeding Lot No. 5 was allotted to Joseph C. Pruden, father of the plaintiffs.
Plaintiffs also introduced a deed from Angy Luton et al to Aaron L. Collins, dated 12 September 1871, conveying "one part of the tract of land left to us by our grandfather William Bunch and lately in the possession of Jacob Pruden situated in Bertie County, adjoining the lands of Jacob Pruden and Elizabeth Spivey." Defendants allege Collins as their predecessor in title and the evidence shows that plaintiffs' land is located south of defendants' land.
The partition proceeding and deed aforesaid were insufficient to show Jacob Pruden as a common source of title for plaintiffs and defendants. The legal effect of the introduction of the partition proceeding before the Referee was to prove plaintiffs as the owners of Lot No. 5 to the exclusion of other heirs of Jacob Pruden; it did not have the effect of proving any title or establishing any boundary as against defendants inasmuch as there was no showing that defendants or their predecessors in title were parties to the partition proceeding. See Huffman v. Pearson, 222 N.C. 193, 22 S.E.2d 440.
The only evidence before the Referee to support his finding of fact no. 4 was the partition proceeding and the deed aforesaid. He erroneously considered the partition proceeding as a beginning link in plaintiffs' chain of title.
*786 Defendants also excepted to the introduction of a map of their lands made by J. B. Parker, surveyor, in 1948; this map is referred to in the Referee's finding of fact no. 7. The exception is well taken.
The evidence indicates that the map was prepared for the purpose of applying for a Federal Land Bank loan but was not used; neither was it recorded. It was said by Winborne, J. (later C. J.), in Searcy v. Logan, 226 N.C. 562, 39 S.E.2d 593: "A map or plat of a survey not made in pursuance of an order of the court is inadmissible as evidence per se. While it may be used by a witness under examination to explain or elucidate his testimony, it may not be exhibited as substantive evidence." (citations)
Defendants contend that the Referee and Superior Court committed prejudicial and reversible error in refusing to enter a directed verdict and judgment for the defendants on questions of title and boundaries. This contention is overruled. In McDaris v. Breit Bar "T" Corp., 265 N.C. 298, 144 S.E.2d 59, it is said: "Notwithstanding the incompetency of the testimony, we must consider it on the motion for nonsuit. Evidence erroneously admitted will nevertheless be considered on appeal in passing upon the sufficiency of plaintiff's evidence to withstand nonsuit since the admission of such evidence may have caused plaintiffs to omit evidence of the same import."
We hold that crucial findings of fact and conclusions of law of the Referee were based on improper evidence and that the Superior Court committed error in not sustaining defendants' exceptions thereto.
Defendants made numerous additional assignments of error, but inasmuch as this action is being remanded because of the errors above mentioned, we do not deem it necessary to consider the remaining assignments of error.
The judgment of Judge Parker is vacated, and this cause is remanded to the Superior Court of Bertie County for further proceedings consistent with this opinion.
Error and remanded.
BRITT and MORRIS, JJ., concur.