Opinion
(Filed 12 March, 1901.)
EJECTMENT — Exception in Deed — Burden of Proof.
Where there is an exception in a deed, the burden of proof is upon him who would take advantage of the exception.
ACTION by D. L. Batts against J. E. Batts, heard by Judge H. R. Starbuck and a jury, at November Term, 1900, of WILSON. From a judgment for the plaintiff, the defendant appealed.
(22) H. G. Connor Son, for the plaintiff.
No counsel for the defendant.
This action is for the possession of a lot of land of three acres upon which there are valuable improvements. On the trial the plaintiff offered in evidence a deed to himself from the defendants in which was conveyed a tract of five hundred acres with an exception of seventy-three acres in the southwest corner, and which seventy-three acres are well described by metes and bounds. There was also evidence on the part of the plaintiff locating the 500-acre tract, and further evidence that the 3-acre lot was included in the boundaries of the 500-acre tract, and that the defendant was in possession of the 3-acre lot and premises.
The defendant offered no evidence, but requested the Court to charge the jury that the burden was on the plaintiff to show that the locus in quo was outside the exception mentioned in the deed. The instruction was refused, and the jury were charged that if they were satisfied by a preponderance of the evidence that the lot of three acres was a part of and included within the boundaries of the 500-acre tract, then the burden was on the defendant to show by a preponderance of the evidence that the 3-acre lot was included in the exception. The defendant excepted, and appealed to this Court.
The only question presented is, upon whom does the onus lie, upon the plaintiff or upon the defendant? It is upon the defendant. The plaintiff's deed conveyed and covered the whole 500 acres; 73 acres were excepted. The defendant insists that the lot of 3 acres is a part of the exception, and certainly that is an affirmative, and he must prove it. McCormick v. Monroe, 46 N.C. 13; Gudger v. Hensley, 82 N.C. 481; Steel Co. v. Edwards, 110 N.C. 353.
No error.
Cited: Laffoon v. Kerner, 138 N.C. 284.
(23)