Opinion
(Filed 28 March, 1928)
Trial — Directed Verdict — Directed Verdict Erroneous on Conflicting Evidence.
A directed verdict to an issue is erroneous when the evidence thereon is conflicting.
APPEAL by defendants from Grady, J., August Term, 1927, of CHATHAM.
Seawell McPherson for plaintiffs.
Siler Barder and W. E. Brock for defendants.
Action for the recovery of land and damages for cutting timber. The jury were instructed to answer the first issue "Yes" if they found the facts to be as testified to by all the witnesses. The following verdict was returned:
1. Are the plaintiffs the owners and entitled to the possession of the tract of land described in the complaint? Answer: Yes.
2. If so, have the defendants wrongfully entered upon said lands and cut timber thereon as alleged in the complaint? Answer: Yes.
3. Is the plaintiff's cause of action barred by either of the several statutes of limitations pleaded in the answer? Answer: No.
4. What damages are the plaintiffs entitled to recover of the defendants, if anything, for such wrongful acts? Answer: $120.
Judgment for the plaintiffs and appeal by defendants upon assigned error.
On 12 April, 1884, Joseph Riddle and his wife executed a mortgage to John Williams conveying the land in controversy. The mortgage was registered 7 May, 1884, and some time after Christmas, 1889, the land was sold under the power conferred by the mortgagors. J. J. Hatley became the highest bidder, but John Williams took the land and went in to possession, There was evidence for the plaintiffs tending to show continuous possession by themselves and those under whom they claim title until 1897, and afterwards in 1901 and 1902. There was other evidence also; but on behalf of the defendants there was at least some evidence in contradiction, the probative force of which was a matter for the jury. Under these circumstances a directed verdict was improper, and for this reason the defendants are entitled to a
New trial