
181 S.E.2d 400 (1971)
279 N.C. 100
In the Matter of Callie Hooper KING, et al., Petitioners,
v.
Mary Alice King LEE et al., Defendants.
No. 50.
Supreme Court of North Carolina.
June 10, 1971.
*403 Bethea, Robinson & Moore, by Norwood E. Robinson, Reidsville, for petitioner appellants.
Gwyn, Gwyn & Morgan, by Julius J. Gwyn, Reidsville, for defendant appellees Willie Albert King and Dorothy Lawson King.
BOBBITT, Chief Justice.
The denial by the answering defendants that Albert King, the father of defendant Willie Albert King, owned any interest in Tract #3, and their plea that defendant Willie Albert King is the sole owner thereof in fee, converted the proceeding into an action to try title as in ejectment. 6 Strong, N.C. Index 2d, Partition § 4, at 199 (1968). The burden was on petitioners to show title as alleged, that is, the tenancy in common. Bailey v. Hayman, 218 N.C. 175, 177, 10 S.E.2d 667, 668 (1940); Jernigan v. Jernigan, 226 N.C. 204, 206, 37 S.E.2d 493, 494 (1946), and cases cited. This required proof that title to Tract #3 was in Albert King at the time of his death.
Petitioners, in attempting to prove the alleged tenancy in common, relied upon the sixth method stated in Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142 (1889), that is, the common source doctrine. This doctrine is aptly stated by Justice Battle in Gilliam v. Bird, 30 N.C. 280, 283 (1848), as follows: "(W)henever both parties claim under the same person, neither of them can deny his right, and then, as between them, the elder is the better title and must prevail." This statement is quoted with approval in Stewart v. Cary, 220 N.C. 214, 221, 17 S.E.2d 29, 33 (1941), where many cases relating to the common source doctrine are cited. See Annotation, "Comment Note.Common Source of Title Doctrine," 5 A.L.R.3d 375 (1966).
The fallacy in petitioners' position and in the ruling and judgment of the trial judge lies in the fact that defendant Willie Albert King does not claim under his father, Albert King; on the contrary, he asserts Albert King owned no interest in Tract #3 when he died. Under these circumstances, as held by the Court of Appeals, petitioners failed to establish that Tract #3 is owned by the thirteen children of Albert King as tenants in common. Since the burden of proof was on petitioners, the granting of their motion for a directed verdict was clearly erroneous. See Cutts v. Casey, 278 N.C. 390, 417, 180 S.E. 2d 297, 311. The judgment in petitioners' favor, impliedly vacated by the Court of Appeals, is expressly vacated.
On account of petitioners' failure to offer evidence sufficient to show ownership of Tract #3 by Albert King at the time of his death and present ownership thereof *404 by his thirteen children as tenants in common, the motion of the answering defendants under Rule 50(a), G.S. 1A-1, for a directed verdict against petitioners should have been granted in the absence of a motion by petitioners for an order of voluntary dismissal without prejudice under Rule 41(a) (1). Kelly v. International Harvester Co., 278 N.C. 153, 179 S.E.2d 396 (1971). As to this, our decision is in full accord with that of the Court of Appeals. However, further consideration must be given to that portion of the decision of the Court of Appeals which remands the cause to the superior court for the entry of a judgment which (1) denies petitioners' request for a partition sale of Tract #3, and (2) remands the cause to the clerk of the superior court for further proceedings relating to the partition sale of Tract #1 and Tract #2.
Under Rule 41(a) (2), at the instance of the plaintiff, the court may permit a voluntary dismissal upon such terms and conditions as justice requires. Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 217, 67 S.Ct. 752, 755, 91 L.Ed. 849, 853 (1947); Sizemore, General Scope and Philosophy of the New Rules, 5 Wake Forest Intra.L.Rev. 1, 38 (1969). In contrast to the former practice (see 7 Strong, N.C. Index 2d, Trial § 29Voluntary Nonsuit), a dismissal without prejudice is permissible under Rule 41(a) (2) only when so ordered by the court, in the exercise of its judicial discretion, upon finding that justice so requires. See Safeway Stores v. Fannan, 308 F.2d 94 (9th Cir. 1962).
We apprehend the order of remand of the Court of Appeals will be understood as a positive directive that the superior court enter a judgment adverse to petitioners with reference to the portion of the proceeding which relates to Tract #3. Under Rule 41(a) (2), the court may, at the instance of the petitioners, order a voluntary dismissal without prejudice upon such terms and conditions as justice requires. Thus, prior to granting the motion of the answering defendants for a directed verdict against petitioners and the entry of a judgment adverse to petitioners, petitioners are entitled to move, if so advised, that an order be entered providing for a voluntary dismissal upon such terms and conditions as justice requires. Whether such order should be entered will be addressed to the discretion of the superior court judge.
In respect of Tract #3, petitioners' case failed because of the deficiency in the evidence. Seemingly, petitioners' counsel and the court proceeded under a misapprehension of the applicable law. Admittedly, Albert King died intestate and defendant Willie Albert King is one of his thirteen children. Willie Albert King denies his father owned Tract #3 and pleads sole seizin.
Whether petitioners can convince the superior court, prior to granting the motion of the answering defendants for a directed verdict against petitioners and the entry of a judgment adverse to petitioners, that additional evidence is available which, if brought forward and presented in a new proceeding, would establish their right to partition, will be for consideration and determination by the superior court judge. The obvious purpose of Rule 41(a) (2) is to permit a superior court judge in the exercise of his discretion to dismiss an action without prejudice if in his opinion an adverse judgment with prejudice would defeat justice. Whatever the merits of the present controversy, it appears plainly that the facts in evidence at the trial did not afford a basis upon which the court could adjudicate the respective rights of petitioners and defendants.
On this appeal, it is unnecessary to determine whether the evidence offered by petitioners is also deficient because of the absence of evidence tending to locate Tract #3. If the court should order a voluntary dismissal without prejudice under Rule 41 (a) (2), petitioners would be well advised, before instituting a new partition proceeding, to determine whether they are in position *405 to offer evidence sufficient to establish the location of Tract #3 on the surface of the earth. It is noted that the two lots which petitioners purport to except from Tract #3 are described in the petition, inter alia, as portions of the property conveyed to Albert King by Hence King and wife, Maggie King, by deed dated January 21, 1933, registered in Book 278, Page 274, Rockingham County Registry.
The answering defendants contend it is not incumbent upon them to set forth in their pleading the facts upon which defendant Willie Albert King bases his plea of sole seizin. Whether their pleading is deficient in this respect is not presented. Be that as it may, Rule 33 prescribes the procedure by which defendant Willie Albert King could have been required to state the facts on which the plea of sole seizin was based.
As noted above, the judgment in favor of petitioners based on the granting of their motion for a directed verdict is vacated. The decision of the Court of Appeals is modified so as to permit petitioners to move for a voluntary dismissal without prejudice prior to granting the motion of the answering defendants for a directed verdict against petitioners and the entry of a judgment adverse to petitioners. If the court, in the exercise of its discretion, grants petitioners' motion for a voluntary dismissal, it will enter an order to that effect upon such terms and conditions as justice requires. If the court, in the exercise of its discretion, denies petitioners' motion for a voluntary dismissal, it will enter a judgment adverse to petitioners.
The decision of the Court of Appeals is modified as provided herein. The cause is remanded to the Court of Appeals with directions to that court to remand the case to the Superior Court of Rockingham County for further proceedings in respect of Tract #3 as provided herein.
Modified and remanded.
