
178 S.E.2d 813 (1971)
RESORT DEVELOPMENT CO., Inc.
v.
Ila Freeman PHILLIPS (Widow) et al.
No. 45.
Supreme Court of North Carolina.
February 10, 1971.
*817 Carr & Swails, by James B. Swails, Wilmington, for plaintiff.
Evelyn A. Williams, New York City, and Pearson, Malone, Johnson & DeJarmon, Durham, by LeMarquis DeJarmon, Durham, for defendants.
HIGGINS, Justice.
The defendants argue here that the Superior Court in the trial and the Court of Appeals on review committed error by holding the order of reference did not violate their constitutional right to a jury trial under Article 1, Section 19, North Carolina Constitution. The adverse decision (3 N.C.App. 295, 164 S.E.2d 516) was filed on December 18, 1968. The defendants failed to apply by certiorari for further review and thereby waived their right to challenge the decision of the Court of Appeals, even though a constitutional question was involved. "`No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right.'" Harriet Cotton Mills v. Local No. 578, 251 N.C. 218, 111 S.E.2d 457, citing Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834; Michel v. Louisiana, 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83; Jennings v. Illinois, 342 U.S. 104, 72 S.Ct. 123, 96 L.Ed. 119.
We conclude the constitutional right to a jury trial, having been raised in the trial court and in the Court of Appeals and decided adversely to the defendants, they thereby permitted the decision to become final, and hence the law of the case. The decision, however, seems to be supported by this Court's decisions. "A compulsory reference, under provisions of G.S. § 1-189, does not deprive either party of his constitutional *818 right to a trial by jury of the issues of fact arising on the pleadings, but such trial is only upon the written evidence taken before the referee. * * *" Moore v. Whitley and Butt v. Moore, 234 N.C. 150, 66 S.E.2d 785.
The defendants, by answer, admitted that the plaintiff owned an interest in the described lands, but they assert they also have an interest therein. Moreover, this admission gave the plaintiff standing in court to challenge the defendants' claim as a cloud upon its title. "In order to remove a cloud from a title, it is not necessary to allege and prove that * * * the plaintiff * * * had an estate in or title to the lands in controversy. It is only required * * * that the plaintiff or plaintiffs have such an interest in the lands as to make the claim of the * * * defendants adverse to him or them." Etheridge v. Wescott, 244 N.C. 637, 94 S.E.2d 846; Williams v. North Carolina State Board of Education, 266 N.C. 761, 147 S.E.2d 381.
"An action may be brought by any person against another who claims an estate or interest in real property adverse to him for the purpose of determining such adverse claim." Plotkin v. Merchants' Bank & Trust Co., 188 N.C. 711, 125 S.E. 541. By suit to remove a cloud from title, a plaintiff does not necessarily put his title in issue. "He is not demanding possession of land nor are his rights put in issue. He demands judgment that the defendant has no right, title or interest * * * adverse * * * to him." Plotkin v. Merchants' Bank & Trust Co., supra. "The beneficial purpose of the statute (G.S. 41-10) is to free the land of the cloud resting upon it, and make its title clear and indisputable, so that it may enter the channels of commerce and trade unfettered and without the handicap of suspicion. * * *" Christman v. Hilliard, 167 N.C. 4, 82 S.E. 949.
The defendants alleged their title had its origin in Grant No. 97 to John Guerard, from whom they and their predecessors derived title. The defendants thereby assumed the burden of locating the calls of Grant No. 97 on the ground, and of showing that the grant covered at least a part of the lands described in the complaint.
The land embraced in Grant No. 97, according to the description, begins at a stake "in the southwest corner of your new survey in your old line; * * * thence to a stake in your old line and with that line to the BEGINNING." Locating the land on the ground cannot be done by surveying the calls of Grant No. 97. "`A description contained in a junior conveyance cannot be used to locate the lines called for in a prior conveyance.'" Day v. Godwin, 258 N.C. 465, 128 S.E.2d 814, citing Carney v. Edwards, 256 N.C. 20, 122 S.E.2d 786; Bostic v. Blanton, 232 N.C. 441, 61 S.E.2d 443.
The defendants' position in the instant case is strikingly similar to the plaintiff's position in Day v. Godwin, supra, where the survey of the junior grant was relied upon and an aerial photograph was offered to assist in locating the boundary lines on the ground. "* * * Having failed to locate the crucial corners and lines upon the ground, he does not explain and the record does not disclose how he may be able to do better on a picture (aerial photograph) or a drawing (plat). * * * `It is error to allow a jury on no evidence, or only on hypothetical evidence, to locate the lands described in a deed.'" The court properly excluded the defendants' evidence by which they attempted to locate the boundary lines of Grant No. 97 by surveying the calls of that grant. Grant No. 97 was a junior conveyance and its calls for a senior document could be located only by locating the calls of the senior document. Coffey v. Greer, 249 N.C. 256, 106 S.E.2d 209.
The defendants claim by record title, and not by adverse possession. They allege their record title had its genesis in Grant No. 97. Therefore, the state of the pleadings casts upon them the burden of tracing their title to Grant No. 97. "The *819 burden rests upon the defendant to establish a title which he has set up to defeat the complainant's claim of ownership." 44 Am.Jur., § 83, Quieting Title, p. 67. "Where the defendant substantially asserts and relies on a fact as an affirmative issue, the burden is on him to establish it." 74 C.J.S. Quieting Title § 76, Presumptions and Burden of Proof, p. 118; McCullen v. Durham, 229 N.C. 418, 50 S.E.2d 511; Hayes v. Cotton, 201 N.C. 369, 160 S.E. 453; Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142.
The trial court, as a matter of law, adjudged the plaintiff is the owner and entitled to possession of the two tracts of land described in the complaint. The boundaries of the two tracts, as set out in the complaint, show on their face they are not coterminous with the boundaries of the plaintiff's land as described by the surveyor and as found by the referee. The plaintiff's map and its oral testimony failed to show the plaintiff's ownership of the lands described as Tracts I and II. The court's finding of plaintiff's ownership is without support in the evidence and must be set aside. However, the court's finding the defendants had no interest in the lands claimed by the plaintiff was required because of their failure to offer proof of the claim. The plaintiff's failure to show fee simple title to all the lands claimed is not fatal to its case. A cause of action to remove a cloud from title is made out when the plaintiff introduces evidence that he has an interest in a described tract of land and the defendant is asserting, or attempting to assert, an unjust claim thereto. Consequently, the finding and conclusion to that effect are affirmed.
The affirmative finding that the plaintiff has established title to the two tracts of land described in the complaint is not supported by the evidence and that finding is set aside. What is said herein with respect to plaintiff's title is not to be construed as a finding, conclusion, or even a suggestion that the plaintiff's title is defective. There is insufficient evidence to support the court's affirmative finding, as a matter of law. Hence the finding and conclusion that the plaintiff is the owner of the two described tracts of land must be set aside. The Court of Appeals will remand this cause to the Superior Court of New Hanover County for the modification of the judgment as required herein. The decision of the Court of Appeals is
Affirmed in part and reversed in part.
SHARP, Justice (concurring):
I concur in the conclusion of the majority (1) that the trial judge was correct in directing a verdict against defendants, who had the burden of proof on the second and third issues, and in adjudicating that defendants have no interest in the lands described in the complaint; (2) that the judge's affirmative finding that plaintiff had established title to the two tracts described in the complaint is not supported by the evidence; and (3) that his adjudication that plaintiff is the owner and entitled to the possession of the two tracts of land described must be vacated. Notwithstanding, I direct attention to the following:
The court's erroneous adjudication that plaintiff was the owner and entitled to the possession of the lands described in the complaint was made upon the false premise that "from the evidence offered by the plaintiff (sic) no inference adverse to the title of the plaintiff arose and the evidence offered by the plaintiff was clear and conclusive and uncontradicted by evidence of the defendants." Although the result of this Court's decision is correct, I dissent from the intimation in the majority opinion that it would have been proper to have directed a verdict in favor of plaintiff, upon which rested the burden of proof, if its evidence had, in fact, been "clear, conclusive and uncontradicted by evidence of the defendant." Now, as before the enactment of the Rules of Civil Procedure, G.S. § 1A-1 et seq., the credibility of the witness and the weight of the evidence is for determination by the jury notwithstanding there is no conflict in the evidence.
*820 Based on the admissions in the pleadings, I would hold that plaintiff is entitled to an adjudication that it owned an undefined interest in the lands described in paragraph 2 of the complaint; that, because of defendants' failure of proof, plaintiff is entitled to a directed verdict that defendants have no right, title, or interest in the lands described in the complaint; and that the judgment of Cowper, J., should be stricken and the case remanded to the Superior Court for judgment in accordance with this opinion.
BOBBITT, C. J., joins in this concurring opinion.
