Supreme Court of North Carolina 229 N.C. 541, 50 S.E. 2nd 569 J.

Ervin; December 1, 1948 Rule 131 Burden of Proof & Assumptions

Short Version: Plaintiff heirs challenged the title of the defendants over the land of their common ancestor, Mrs. Johnson. The defendants proof of their ownership was a warranty deed executed by Mrs. Johnson. The heirs disputed the deed, saying it was fraudulent. Also, they claimed that they, together with the defendants, were tenants in common. Court ruled that the burden of proof lies on the plaintiffs to prove their claim that the deed was fraudulent. As plaintiffs, they must prove every element of their cause of action. The nonexistence of the deed, even if it was a negative fact, must be proved by the one who alleged it. As to their claim of co-tenancy, they must show their title of common tenancy. The plaintiffs did not present any evidence. Court said that without evidence, it was the plaintiffs who stood to lose in this case. The general rule is that the burden of proof lies upon the person who will be defeated as to a particular issue or entire case if no evidence relating there to is given on either side.

Johnson v. Johnson

Facts:
Mrs. Nancy Johnson received a tract of land as her share in the lands of her deceased father. B.C. Johnson (defendant), occupied the premises for 35-40 years prior to this case. o His proof: a warranty deed conveying the land from Mrs. Nancy to B.C. Johnson, in fee simple. The document was filed with the register of deeds of Franklin County, appeared to be marked/signed by Mrs. Nancy, acknowledged before a justice of the peace, and ordered registered by the clerk of court. It stated a consideration of $1,000 Mrs. Nancy died intestate. B.C. Johnson executed documents conveying to himself and his wife a life estate in the property with the remainder to vest in the remainderman. The plaintiff Johnsons, who were Mrs. Nancys heirs also (B.C. Johnson was her heir too), filed a partition acti on. According to them, they along with the defendants (B.C. Johnson, his wife, and the remainderman), were tenants in common of the property. Also, the deed was never made, executed, or delivered by Mrs. Nancy. Mrs. Nancy did not know of the existence of the deed and it was placed upon public record without her consent. Trial court ruled against the plaintiff heirs, saying that the burden of establishing the fact of the execution of the purported deed was upon B.C. Johnson, who claimed under it. He offered evidence tending to show that Mrs. Nancy signed, sealed and delivered the instrument in question in due form of law. The plaintiffs testimony had no tendency to disprove the execution of the instrument. Plaintiffs appealed. Appellate court held that the burden of proving the fraud in the warranty deed granted by Mrs. Nancy was on the heirs. Since they presented no evidence to prove their assertion that property was not transferred to B.C. Johnson, they had no case.

Issue: On whom does the burden of proof lie? THE PLAINTIFFS.

It was erroneous for the trial court to rule that the burden of establishing by greater weight of the evidence that Mrs. Nancy did in fact sign, seal, and deliver the deed, which was admitted to registration, was on B.C. Johnson. The question as to whether the burden of proof rests with a plaintiff or a defendant is determined from the pleadings before the introduction of evidence. Plaintiff has the burden of proof with respect to all elements of his claim or cause of action. What he must allege, he must prove. He is even required to make proof of his negative allegations if they are essential to the establishment of his case. Whenever an issue of fact is reached, whether the party claiming the judgment of the court asserts an affirmative or negative proposition, he must make good his assertion. On him lies the burden of proof. The question as to which party to an action has the burden of proof with respect to either a particular issue or the entire case finds solution through the application to the pleadings of a simple test. The burden of proof lies upon the person who will be defeated as to the particular issue or the entire case if no evidence relating thereto is given on either side. The plaintiffs claimed judgment for partition, making the essential averment that they and the defendants owned such lands as tenants in common. When the defendants denied the allegation of co-tenancy and pleaded sole seizin in themselves, the law cast upon the plaintiffs the burden of showing title as alleged, i.e., the tenancy in common. Perhaps realizing that the deed was a lion in their path, the plaintiff heirs alleged a new matter: that the deed was a for gery. o This was a new matter. o Manifestly, the burden of showing that the deed was a forgery devolved upon them for the reason that the nonexecution of the instrument constituted an essential element of their claim or cause of action. o Their reply disclosed the existence of the alleged deed and the fact that it had been probated and registered. The probate and registration gave rise to the rebuttable presumption that the instrument had been duly signed, sealed, and delivered by the purported grantor.

Thus, the plaintiffs would have suffered defeat on the issue as to the execution of the deed if no evidence had been offered on either side with respect thereto. As to the question: Did Mrs. Nancy make, execute, and deliver the deed? o Court said she did. Plaintiffs did not present any evidence to counter the fact of registration of the deed in a public record.

Dispositive: Appellate court affirmed. -Bettina