
    J. G. COLLINS, et al., v. W. H. SWANSON.
    
      Action to Recover Land — Title—Common Source of Title— . Estoppel — Burden of Jfroof — Directing Verdict.
    
    1. A defendant in an action to recover land, who sets up title through purchase of the land by his ancestor, is estopped to deny the title of the latter’s grantor.
    2. Where, in an action to recover land, plaintiff and defendant claim title from a common source, the plaintiff is required ouly to show the better title from such source.
    3. Where, in an action to recover land, the defendant set up as title the alleged purchase of the land, by his ancestor, from the plaintiff’s an■cestor, ,T. S., and also pleaded the twenty years statute of limitations and admitted that plaintiffs were the heirs at law of J. S., and that the latter had died within 15 years prior to the commencement of the action, and the plaintiffs introduced testimony tending to show that the defendant liad not been in possession of the land for 20 years; Held, that the burden of proof having been shifted upon the defendant, by the allegations in his answer and his admissions, to show a better title either by a valid conveyance from the common source to himself or his ancestor, or by making good his plea of the statute, it was error to non-suit the plaintiff.
    4. Under no circumstances can a verdict be directed in favor of the party upon whom the burden of proof rests.
    Civil actioN for the recovery of laud, tried before Tim-berlalr, J., and a jury, at April Term, 1897, of FiiaNKLIN Superior Court. Upon an intimation by ITis Honor that the plaintiffs could not, on their own testimony recover, they submitted to a non-suit and appealed.
    
      Messrs. F. S. Spruill and J. B. Batchelor, for plaintiffs (appellants).
    
      Mr. C. M. Cooke, for defendant.
   Douglas, J.:

This is an action in the nature of ejectment brought by the plaintiffs appellant, as heirs-at-law of Munford Collins, to recover certain lands in the alleged possession of the defendant. The defendant in his answer, denies the material allegations of the complaint, and pleads the Statute of Limitations, as having been in quiet and uninterrupted possession for more than twenty years under known and visible boundaries. In his amended answer he further says, “that in 1863, J. R. Swanson, the father of the defendant, and who has since died intestate, purchased the land in controversy of Munford Collins for the price of $100, which he paid him, and that the deed which he executed has been lost or mislaid, if any was made.” Upon the trial it was admitted “that the plaintiffs are the heirs-at-law of Munford Collins who died in February, 1881, and that this action was brought to the October Term, 1895, of FraNKLIN Superior Court.”

The plaintiffs introduced testimony to show, among other things, that the defendant had not been in possession of the land for twenty years. Upon intimation of His Honor that they could not recover upon their own testimony, the plaintiffs submitted to a non-suit and appealed.

In this intimation of His Honor we think there was substantial error. The defendant set up no title except the purchase of the land, by his ancestor, from Munford Collins. ITe is therefore estopped from denying the title of Munford Collins. Ives v. Sawyer, 20 N. C., 51; Johnson v. Watts, 46 N. C., 228; Thomas v. Kelly, Ibid, 375; Feimster v. McRorie, Ibid, 547; Copeland v. Sauls, Ibid, 70; Gilliam v. Bird, 30 N. C., 280. All that the plaintiffs are required to do, in order that they may recover, is to show a better title from the common source. Gilliam v. Bird, supra; Caldwell v. Neely, 81 N. C., 114; Spivey v. Jones, 82 N. C., 179; Christenbury v. King, 85 N. C., 229; Mobley v. Griffin, 104 N. C., 112; Bonds v. Smith, 106 N. C., 553. The defendant, being estopped from denying the title of Munford Collins and having admitted the plaintiffs to be the heirs-at-law of Munford Collins upon whom the law casts the title in the absence of some valid alienation, must show some better title in himself, either by a valid conveyance from the common source to himself or his ancestor, or by making good his plea of the statute of presumptions. He has done neither, having offered no testimony whatever. The allegation in the answer and the admissions of the defendant shifted upon him the burden of proof. Not only did the defendant fail to bear this burden, but the plaintiff's testimony strongly tended to rebut the plea of the statute. In view of the intimation of His Honor, that upon the plaintiff’s own evidence they could not recover, this Court must consider all their evidence as true and regard it in the most favorable light for them, as the jury might so have regarded it had it been submitted to them. Abernathy v. Stowe, 92 N. C., 213; Gibbs v. Lyon, 95 N. C., 146; Springs v. Schenick, 99 N. C., 551.

The plaintiffs would have been clearly entitled to go to the jury, even if the burden had still rested upon them; but as the burden had been .shifted to the defendant, under no circumstances could the Court have directed a verdict in his favor. Spruill v. Insurance Co., 120 N. C., 141; Hardison v. Railroad, Ibid, 492.

For error in the intimation of the Court below, the non-suit must be set aside and a new trial ordered.

New trial.  