Crisp v. Benfield

307 S.E.2d 179 (1983)

John Sherman CRISP, Charles Allen Crisp, Robert Forrest Crisp, and Clifford Eugene Crisp v. J.E. BENFIELD and wife, Bertha Benfield, Gerald Benfield and wife, Nora Benfield.

No. 8225SC1117.

Court of Appeals of North Carolina.

October 4, 1983.

*180 Ted S. Douglas, Lenoir, for plaintiffs.

Beal & Mu, P.A. by Beverly T. Beal, Lenoir, for defendants.

WELLS, Judge.

In ruling on a motion for a directed verdict under G.S. 1A-1, Rule 50 of the *181 North Carolina Rules of Civil Procedure, the trial court must consider all the evidence in the light most favorable to the party opposing the motion. Norman v. Banasik, 304 N.C. 341, 283 S.E.2d 489 (1981). The party claiming title by adverse possession has the burden of proof on that issue. State v. Brooks, 275 N.C. 175,166 S.E.2d 70 (1969). Therefore, defendants' motion for a directed verdict could properly be granted only if the evidence, taken in the light most favorable to the plaintiffs, proved as a matter of law that the defendants were entitled to the property by virtue of adverse possession.

Defendants argue that John Edward Benfield's color of title in combination with Gerald Benfield's actual possession in excess of seven years was adequate for adverse possession under G.S. 1-38. The trial court agreed, finding that John Edward Benfield acquired adverse possession by being in possession through his son. The trial court specifically stated that there was no evidence that the son entered the land as an agent for his father. Instead, the elder Benfield had "turned it over to his son."

Under G.S. 1-38, adverse possession rights vest "[w]hen a person or those under whom he claims is and has been in possession of any real property, under known and visible lines and boundaries and under color of title, for seven years ...."

Actual possession is a required element of adverse possession. "In order to establish title by adverse possession there must be actual possession with an intent to hold solely for the possessor to the exclusion of others." Mizzell v. Ewell, 27 N.C.App. 507, 219 S.E.2d 513 (1975); see also Price v. Tomrich Corp., 275 N.C. 385, 167 S.E.2d 766 (1969). Our supreme court has interpreted "possession" to mean "`that the adverse claimant should either possess it in person or by his ... servants or tenants....' Cothran v. Akers Motor Lines, Inc., 257 N.C. 782, 127 S.E.2d 578 (1962) quoting Grant v. Winborne, 3 N.C. (2 Hayw.) 56 (1798). The adverse possession must constitute an exercise of dominion over the land, making the ordinary use and taking the ordinary profits of which it is susceptible, and must subject the claimant during the whole statutory period to an action in ejectment. (Citations omitted). Mallet v. Huske, 262 N.C. 177, 136 S.E.2d 553 (1964).

The evidence in this case, viewed in the light most favorable to plaintiffs, see State v. Brooks, supra, tends to show that John Edward Benfield, though having color of title, did not actually possess the land in question, and that the actual possessor, Gerald Benfield, had no color of title. For these reasons, the judgment of the trial court must be and is

Reversed.

ARNOLD and EAGLES, JJ., concur.