N.C.P.I.—Civil 820.40

“Does the plaintiff2 have marketable record title to (identify land)?”

On this issue the burden of proof is on the plaintiff. This means

that the plaintiff must prove, by the greater weight of the evidence, three

things:3

First, that the plaintiff (and his predecessor(s)-in-title) [has] [have]

been vested with an estate in (identify land) which has been of public

record for at least 30 years at the time this action was started. A “vested

interest” is a present ownership that includes the right to transfer that

same ownership to some other person.4 An “estate” means an ownership

interest in real property.

Second, that the public record shows a title transaction that is at

least 30 years old at the time this action was brought through which [the

plaintiff] [a predecessor-in-title to the plaintiff] became vested with title

to (identify land). (A "title transaction" means any transaction affecting

title to any interest in real property, including a [warranty deed]

[quitclaim deed] [mortgage] [title by will] [title by descent] [tax deed]

[trustee's deed] [referee's deed] [commissioner's deed] [guardian's deed]

[executor's deed] [administrator's deed] [sheriff's deed] [contract] [lease]

[reservation] [judgment] [order of court] [(state other transaction)].)5

(Each link in the chain of conveyances from (name the alleged first link in

the plaintiff's chain) to the plaintiff must be valid to pass title.

[Use in connection with deeds: Members of the jury, to convey valid

title, a deed must meet certain requirements. The Court has already

found that some of these requirements have been met. You must decide,

by the greater weight of the evidence, whether the remaining

requirements have been met. These include whether (here select as

appropriate):

[the (identify deed at issue) names the grantor6]

[the (identify deed at issue) identifies a then-existing grantee6]

[the (identify deed at issue) has operative words of conveyance.7 It

is not necessary that the grantor actually use such words as “convey” or

“grant” as long as the words used by the grantor show his intent to

transfer his interest.8]

[the (identify deed at issue) adequately identifies the land

conveyed.9 A description is adequate if it is sufficiently definite to

identify the land being conveyed or refers to something by which the land

may be identified with certainty.10 A description is not adequate if it

leaves the identity of the land in a state of absolute uncertainty and fails

to refer to something by which it might be identified with certainty.11]

[the (identify deed at issue) was properly signed by the grantor (or

his authorized agent).12 (A signature may consist of a mark or a symbol

made by the grantor with the intent that it constitute a signing of the

deed.13) (A mark or symbol put on a deed by someone other than the

grantor is nonetheless the grantor's signature if he adopts it as his

signature.14)]

[NOTE WELL: Use only for deeds executed prior to June

17, 1999:15 the (identify deed) was properly sealed.16

(A deed is sealed when the signature of the grantor is

accompanied by a mark, impression or words which

indicate that he adopts his signature as his seal. The

word “seal” beside (or near) the grantor's name is

sufficient.17)]

[the (identify deed at issue) was properly acknowledged by the

grantor before an official authorized by law to take such

acknowledgments18 (probated and recorded).19]

[the (identify deed) was validly delivered20 to [the grantee]

[someone on the grantee's behalf].

[Use where the plaintiff relies on a presumption of valid delivery:

You may find, though you are not compelled to do so, that a valid

delivery has occurred if (identify deed) [is in the possession of the

grantee]21 [has been probated and recorded in the public registry].22]

[Use where the plaintiff relies on proof of grantor's intent to deliver,

and a physical transfer: A valid delivery requires two things.23 First, the

grantor must intend to transfer the deed beyond his possession and

beyond his legal control. Second, the grantor must actually physically

transfer the deed from his possession with the intent that it shall pass to

[the grantee] [someone on the grantee's behalf].24]]

[the (identify deed at issue) was accepted by the grantee in a

legally adequate manner.

[Use where the plaintiff relies on a presumption of legal

acceptance: You may find, though you are not compelled to do so, that

the grantee accepted the deed [if the conveyance was beneficial to him25

(even though the grantee [had no knowledge of the conveyance]26 [was

an infant]27 [lacked mental capacity to understand what he was

receiving]28 [name other disability])] [the deed has been probated and

recorded in the public registry]29 [the deed is found in the possession of

the grantee]30.]

[Use where the plaintiff relies on proof of actual acceptance: A

grantee's acceptance may be [express] [implied from the circumstances].

[Acceptance is express when, by word or conduct, the grantee assents to

the conveyance for his benefit.] [Acceptance is implied where a

reasonable person, under the same or similar circumstances, would

conclude that the grantee accepted the deed].31]]

[(state other criteria at issue and supported by the evidence)].]

[Use in connection with wills: Members of the jury, to pass valid

title, a will must meet certain requirements. The Court has already found

that some of these requirements have been met. You must decide, by the

greater weight of the evidence, whether the remaining requirements have

been met. These include whether (here select as appropriate):

[the will is legally sufficient.32 For a will to be legally sufficient, the

plaintiff must prove, by the greater weight of the evidence, (state

number) things: (Here read, as appropriate, the elements of N.C.P.I.-Civil

860.05 (Attested Written Will) or N.C.P.I.–Civil 860.10 (Holographic

Will).]

[the testator was competent.33 For the testator to be legally

competent, the plaintiff must prove, by the greater weight of the

evidence, (state number) things: (Here read, as appropriate, the

elements of N.C.P.I. 860.15 (Wills-Testamentary Capacity).]

[the will was properly probated and recorded34]

[(state other criteria at issue and supported by the evidence)].]

[Use in connection with transfers by inheritance: Members of the

jury, to pass valid title, a transfer by inheritance must meet certain

requirements. The Court has already found that some of these

requirements have been met. You must decide, by the greater weight of

the evidence, whether the remaining requirements have been met. These

include whether (here select as appropriate):

(State requirements at issue for transfers by inheritance and

supported by the evidence).]

[Use in connection with other types of transfers: Members of the

jury, to pass valid title, a (describe other transfer) must meet certain

requirements. The Court has already found that some of these

requirements have been met. You must decide, by the greater weight of

the evidence, whether the remaining requirements have been met. These

include whether:

(State requirements at issue for any other method of passing title

supported by the evidence.)35]

The (describe property) must be included in each link in the chain of

title starting with the (name the alleged first link in the plaintiff's chain)

and ending with the [deed] [will] [transfer by inheritance] [(describe

other conveyance)] to the plaintiff.36)

And Third, nothing appears in the public record to divest the

plaintiff (one of the plaintiff's predecessors-in-title) of that estate in

(identify land). To be divested, the plaintiff (one of the plaintiff's

predecessors) must have been vested with title and subsequently lost

title to (identify land), whether voluntarily or involuntarily.

Finally, as to the (state number) issue on which the plaintiff has

the burden of proof, if you find by the greater weight of the evidence that

the plaintiff has marketable record title to (identify land), then it would

be your duty to answer this issue “Yes” in favor of the plaintiff.

If, on the other hand, you fail to so find, then it would be your duty

to answer this issue “No” in favor of the defendant.