Hilliard v. . Abernethy

88 S.E. 865, 171 N.C. 644, 1916 N.C. LEXIS 136

• Court: Supreme Court of North Carolina
• Decided: May 24, 1916
• Status: Published

Opinion

BeowN, J.

The basis of his Honor’s ruling is a processioning proceeding instituted between these parties and tried before Cline, J., at June Term, 1913, Superior Court of Burke County upon this issue:

“Is the true location of the dividing line between the plaintiffs and defendants as located on the court map by the red line “B” to “0”? Answer: “Yes.”

The sole question presented is whether this processioning proceeding to settle the boundary line between these plaintiffs and defendants is an estoppel on the defendants from now claiming the lands in plaintiff’s boundary by an alleged superior title.

The processioning proceeding in this and many other States was originally devised in order solely to locate boundary lines, and was similar in all respects to the English perambulation, which was a custom of going around the boundaries of the manor with witnesses to determine and preserve recollection of the extent and location of its boundary and to see that the landmarks had not been removed.

The powers of the processioners extended only to locating and establishing lost or doubtful boundaries. 'They had no authority to disturb title, or rights of possession, or to establish a new line. That was the law in this State prior to 1893. Williams v. Hughes, 124 N. C., 3.

Since the act of 1893, Revisal, 111, parties may, under the processioning act, establish the division line and boundary between them without putting the title in issue, or they may join issue also upon the title. Whitaker v. Garren, 167 N. C., 660. Where the force and effect of the defendant’s plea is to put the title in issue, the final judgment will operate as an estoppel both as to title and as to the correct location of the line. Maultsby v. Braddy, ante, 300.

In the processioning proceeding relied on as an estoppel, the pleadings, the evidence, and the charge of the judge were all introduced on this trial and are printed in the record. It is plain that in the petition and answer the title to the land was put in issue, and further it appears from the evidence introduced and from the charge of the j’udge that the question of title was submitted to the jury under the form of issue as framed by the court.

We are of opinion there is

No error.