Cutts v. Casey

Supreme Court of North Carolina

Cutts v. Casey

170 S.E.2d 598, 275 N.C. 599, 1969 N.C. LEXIS 476

CourtSupreme Court of North Carolina

DecidedNovember 19, 1969

Docket4

StatusPublished

Cited by8 cases

This text of 170 S.E.2d 598 (Cutts v. Casey) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cutts v. Casey, 170 S.E.2d 598, 275 N.C. 599, 1969 N.C. LEXIS 476 (N.C. 1969).

Pincite

Opinion

Sharp, J.

This appeal presents two questions: (1) Did Judge Bundy have authority to render judgment in this case in New Hanover County on 1 November 1968 and (2) if so, do the facts he found support the judgment he signed.

When a jury trial is waived the judge must give his decision in writing, stating his findings of fact and conclusions of law separately. Absent consent of the parties the judgment must be filed with the clerk during the session at which the trial takes place. G.S. 1-185. It appears of record that all parties agreed that the judgment in this case “could be signed at the next criminal term in Wilmington.” Plaintiff contends, however, that the parties’ agreement did not authorize the judge to sign, out of session and out of county, “the particular judgment” he rendered; that he was only authorized to sign a judgment in accordance with his announced decision; and that “this case should be reversed and remanded to the Superior Court of Pender County with directions to enter judgment on behalf of the plaintiff as proposed in the unsigned judgment of record,” i.e., the judgment tendered by plaintiff’s counsel. The inappropriateness of this contention ■ — ■ and the impossibility of drafting a judgment upon the judge’s cryptic statement “I am going to hold that the defendant is entitled to his 53 poles and the plaintiff is entitled to the balance” — will appear as the evidence is hereinafter developed. For now it suffices to say that the parties did not attempt thus to circumscribe Judge Bundy’s authority. The stipulation did not limit him to any specific decision, announced or unannounced. *602 When, at the end of the trial, he made the statement upon which plaintiff places his reliance he had neither filed with the clerk nor dictated into the record findings of fact which would control his judgment. When he adjourned the court, he left in Pender County no findings of fact constituting a judicial “verdict” which would support any judgment.

In a land suit as complicated as this one the parties had every reason to anticipate that any findings of fact prepared by either party would “bring on more talk.” According to the judge’s statement to counsel in Wilmington, after leaving Pender County, and upon further consideration of the case, he changed his mind and requested the attorney for defendants to prepare a judgment different from that which plaintiff’s attorney understood he was to draw. There is nothing in the record which suggests that before changing his mind he had conducted any one-sided hearing from which plaintiff’s counsel were excluded. Upon the authority of Dellinger v. Clark, 234 N.C. 419, 67 S.E. 2d 448, a case involving a situation strikingly similar to the one here, we hold that Judge Bundy had authority to make his findings of fact, conclusions of law, and render judgment in New Hanover County at the next criminal term 'of court.

Adjudication of the second question requires consideration of the evidence. Plaintiff and defendants claim from a common source, a grant “for 51 acres of land” on Topsail Banks in Pender County (then New Hanover), made 20 April 1859 by the State of North Carolina to Jesse W. Batson. This grant began at a stake, William B. Sidberry’s corner on the sound, and ran with Sidberry’s line across the banks S. 25° E. 66 poles to a stake at the edge of the ocean; thence with the edge of the ocean N. 53° E. 107 poles to Frederick Rhue’s line; thence with Rhue’s line N. 25° W. 88 poles to Crooked Creek; thence with the creek to the beginning. Thus, the Batson grant called for a quadrangular-shaped tract lying between the lands of Rhue and Sidberry and between two natural boundaries, Crooked Creek and the Atlantic Ocean. Frederick Rhue and William B. Sidberry also acquired their lands by grant from the State of North Carolina. The Sidberry grant was dated 4 January 1845; the Rhue grant, 18 November 1854.

The location of the Rhue line (Batson’s northeastern boundary) is not in controversy. It begins “at a staké at Cockle or Crooked Creek Landing on the sound side, then South 35° E. 92 poles to the ocean.” It is well known and established on the ground. Thus, it is a fixed monument, Batson v. Bell, 249 N.C. 718, 107 S.E. 2d 562. *603 The parties dispute the location of the Sidberry line which must be located before the Batson grant can be defined.

The Sidberry grant purported to convey 170 acres between Topsail and Stump Inlets. It is described as beginning “on a dead cedar at the east end of a hammock near Cockle Creek Pond; thence S. 23° E. 50 poles to a stake; thence S. 50° W. for 260 poles at a stake between the Hammock and the Atlantic; thence N. 23° W. 160 poles to a stake in the sound; thence to the beginning.” The evidence tends to show that Sidberry also owned other lands in the vicinity.

In March 1861 the lands of William B. Sidberry, deceased, were divided. In the division his daughter, Vashti Atkinson, received three tracts totaling 239 acres. One tract, containing 55 acres, was described as beginning on a dead cedar, running thence S. 23° E. 125 poles to a stake; thence N. 23° W. 100 poles to a stake on the sound; thence to the beginning.

On 1 August 1879, Jesse W. Batson conveyed approximately half of the lands described in his grant to Millie Bishop. The deed described the land as lying on Topsail Banks and beginning at a stake, Vashti Atkinson’s corner in the sound; thence with her line across the banks S. 25° E. 66 poles to the ocean; thence with the edge of the ocean, N. 53° E. 53 poles (874.5 feet) to a stake; thence N. 25° W. 88 poles to the sound; thence with the meanders of the sound to the beginning. This deed is the foundation of defendant’s claim, and the location of Vashti Atkinson’s corner is the major problem in this case.

Plaintiff’s evidence tended to show that the northeastern line of the Sidberry tract and of the Vashti Atkinson tract were one and the same. If so, Batson conveyed to Millie Bishop the southern half of his grant as plaintiff contends, and not the northern portion as defendants contend. On the basis of the description in his grant — which called for an ocean frontage of 107 poles (1765.5 feet) —Bat-son would have retained a tract fronting 54 poles (891 feet) on the Atlantic Ocean. However, on the basis of the survey upon which plaintiff relies, he contends that Batson actually retained 2574 feet.

On 21 January 1956 a petition was filed by heirs of Jesse W. Batson and S. G. Blake, the grantee of some of the heirs, to partition that portion of Batson’s grant which remained after his conveyance to Bishop. Commissioners were appointed, and they employed a surveyor, Raymond Price, to locate and divide the land which Batson had retained. On 2 June 1956 the commissioners filed their report showing a division of the property into twelve lots. The *604 map of this division is plaintiff’s Exhibit F (also marked defendants’ Exhibit 5). The Clerk of the Superior Court approved the report on 13 June 1956, and it was recorded on 9 July 1956.

In the Sidberry grant, the beginning point was designated as a dead cedar as was the beginning point in the 55-acre tract allotted to Vashti Atkinson in the division of his estate. According to plaintiff’s evidence, in May 1956 the site of the dead cedar was marked by an old lightwood knot of indefinite age.

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