
    WILLIAMSON v. BRYAN.
    (Filed September 18, 1906).
    
      Ejectment — Issues—Admissions—Title Out of State.
    
    1. It is the duty of the trial Judge to submit such issues as are necessary to settle the material controversies arising upon the pleadings, and in the absence of such issues or equivalent admissions of record sufficiently to reasonably justify a judgment rendered thereon, this Court will order a new trial.
    2. Where, under the pleadings in an action to recover possession of land, the sole controversy relates to the allegation of a boundary-line between the lands of the plaintiff and the defendant, the plaintiff claiming on the west side of that line and the defendant on the east side of it, an issue as to the location of this boundary-line is responsive to the allegations of the pleadings, ‘ and, taken in connection with the admissions, was sufficient to justify the judgment.
    3. In an action to recover possession of land, it was unnecessary for the plaintiff to show title out of the State, where the answer admitted that the plaintiff owned all the lands on one side of a well-established boundary-line and the defendant all on the other side.
    ActioN by D. Ii. Williamson against J. Ii. Bryan to recover possession of land, beard by Judge E. B. J ones and a jury, at tbe November Term, 1905, of tbe Superior Court of Pitt.
    From tbe judgment rendered, tbe defendant appealed.
    
      L. I. Moore and Skinner & Whedtee for tbe plaintiff. Jarvis & Blow for tbe defendant.
   BeowN, J.

Tbe principal contention made by the defendant is to alleged error of tbe Court in tbe submission of issues to tbe jury. Tbe defendant tendered tbe following issue: “Is tbe plaintiff tbe owner and entitled to tbe possession of tbe narrow strip of land described in tbe third paragraph of bis complaint?” Tbe Court refused to submit such issue and submitted the following: 1. Which is tbe true line dividing plaintiff’s and defendant’s lands from tbe cypress at A to B, as indicated on tbe map ? Ans.: Tbe middle line. 2. Is tbe plaintiff tbe owner and entitled to tbe possession of any lands on tbe west side of tbe true line ? Ans.: Tes; plaintiff owns all land on tbe west side of tbe true line.

Tbe defendant contends that tbe issues submitted by bis Honor are not responsive to tbe allegations contained in tbe. pleadings and are not sufficient to justify a judgment for tbe plaintiff. Eor this position defendant relies upon tbe case of Tucker v. Satterthwaite, 120 N. C., 118. It is well settled that it is tbe duty of tbe trial Judge to submit such issues as are necessary to settle tbe material controversies arising upon tbe pleadings, and that, in tbe absence of such issues or equivalent admissions of record sufficiently to reasonably justify a judgment rendered thereon, this Court will order a new trial. The pleadings in tbe case at bar are quite different from those in tbe case cited. In tbis case tbe answer of tbe defendant is not simply a denial of tbe plaintiff’s title and right to possession of tbe land in controversy, but it undertakes to set out in a measure tbe title to tbe land and to specify and particularize tbe controversy between plaintiff and tbe defendant.

In tbe first allegation of tbe answer tbe defendant admits that tbe plaintiff is tbe owner and entitled to tbe possession of most of tbe lands described in tbe complaint, but 'be denies that tbe plaintiff is tbe owner or entitled to tbe possession of that part of tbe land which is described in tbe third allegation of tbe complaint if it shall be found that tbe boundaries set out in tbe first allegation cover tbe said strip of land so described in tbe third allegation. Tbe defendant further says that more than thirty years ago there was a well-established line owned and recognized by tbe owners of tbe lands belonging to the plaintiff and the defendant, which was well marked and defined and which formed tbe boundary-line between the lands described in tbe plaintiff’s complaint and

the adjoining land now owned by the defendant. The answer further alleges that the defendant and those under whom he claims held and worked up to this boundary-line, and that the defendant and those under whom he claims have had possession up- to such well-recognized boundary-line, and that they have held up to and recognized the said boundary-line and had possession of the said strip of land, which the defendant claims is on his side of the line, for more than twenty years, etc. It will be observed that the defendant claims nothing, either by way of title or possession, beyond the boundary-line, which he claims was established and recognized by the owners of the lands on both sides more than thirty years ago.

We think that, under the pleadings in this case, the sole controversy relates to the allegation of a boundary-line between the lands of the plaintiff and the defendant, the plaintiff claiming on the west side of that line and the defendant on the east side of it. The form of the first issue is directly responsive to the allegations of the complaint and the answer and, taken in connection with the admissions set out in‘the pleadings, was amply sufficient to justify the judgment of the Court. .

It.is contended that the plaintiff has failed to show title out of the State. This was unnecessary, because the answer admits that the plaintiff owns all the lands on one side of the well-established boundary-line and the defendant all on the other side. This admission rendered it unnecessary to prove title out of the State to any of the lands, and made it only necessary to determine the exact location of this boundary-line, which the jury has located according to the contention of the plaintiff. Nevertheless, under the second issue, his Honor did submit to the jury with appropriate instructions the various phases of the case as presented by the evidence relating to adverse possession of the strip of land in controversy, which issue was also found for the plaintiff. But in tbe view we take of it tbis was unnecessary, because, under tbe admissions contained in tbe answer, tbe controversy between tbe parties was determined when tbe jury located tbe true line between tbe lands of these adjoining owners; and tbis finding, coupled with tbe admissions in tbe pleadings, is sufficient to sustain tbe judgment. However, we bave examined tbe evidence, tbe charge of the Oourt and tbe exceptions relating to tbe second issue, and we find that under that issue tbe question of adverse possession, etc., was fully submitted to tbe jury with proper instructions, and we think tbe exceptions are without merit.

No Error.  