Lane Ex Rel. Lane v. Lane

121 S.E.2d 893, 255 N.C. 444, 1961 N.C. LEXIS 626

Opinion

Bobbitt, J.

The map, reproduced on the next page, was prepared by S. Elmo Williams, Court Surveyor.

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The line, A to B, referred to in the second (submitted) issue, is not in controversy. As to the line, B to C, referred to in the third (submitted) issue, there is no controversy as between plaintiff and Jesse E. Chappell as to the portion thereof running from B to X. However, defendants contend the portion thereof from X to C is the dividing line between their land (the 20-foot strip) and the land of Jesse E. Chap-pell.

It is noted: The evidence discloses the point Y, shown on the court map, is on the east side of the Sandy Ridge Road, twenty feet south of D.

Originally, Henry Copeland owned a tract referred to as containing ITY2 acres and Thompson Boyce owned a tract referred to as containing 5 acres. Thompson Boyce’s southern boundary was Henry Copeland’s northern boundary.

By deed dated February 3, 1928, filed for registration February 15, 1928, recorded in Book 17, page 354, Henry Copeland and wife conveyed his said tract to A. C. Lane. This tract, apart from a reduction in distances caused by the widening of Sandy Ridge Road, is the land embraced within the lines A to B to X to Y to A. The description in this deed refers to the Thompson Boyce line as the northern boundary of the tract therein conveyed.

By deed dated February 10, 1925, but acknowledged September 21, 1931, recorded in Book 20, page 101, Thompson Boyce conveyed to A. C. Lane a 20-foot strip. After the particular description, this 20-foot strip is referred to as “containing by estimation 1/2 acre to be the same more or less.” This 20-foot strip is a part of the original Thompson Boyce tract. The southern line of the 20-foot strip is the northern line of the tract conveyed to A. C. Lane by Henry Copeland. The 20-foot strip is the land embraced within the lines Y to X to C to D to Y.

The description in the petition is a composite of the descriptions in said two deeds to A. C. Lane.

Defendants offered in evidence a deed dated and filed September 23, 1938, recorded in Book 24, Page 108, by which Thompson Boyce, for a recited consideration of $300.00, purported to convey to E. J. Lane the entire original Thompson Boyce tract. Thereafter, E. J. Lane, reserving a life estate, purported to convey this tract to Creg J. Lane.

Each of the two deeds made by Thompson Boyce, the senior deed to A. C. Lane and the junior deed to E. J. Lane, describes and purports to convey the 20-foot strip. Clearly, the deed from Thompson Boyce to E. J. Lane did not vest in E. J. Lane title to the 20-foot strip. However, it purported to do so and, hence, constituted color of title to the 20-foot strip.

A deed which purports to convey a tract of land, sufficiently identified by the description set forth therein, but which fails to do so because of want of title in the grantor, constitutes color of title. Carrow v. Davis, 248 N.C. 740, 105 S.E. 2d 60; Trust Co. v. Parker, 235 N.C. 326, 69 S.E. 2d 841, and cases cited. The deed from Thompson Boyce to E. J. Lane conveyed a valid legal title to all land described therein except the 20-foot strip. As to the 20-foot strip, it constituted color of title. Trust Co. v. Miller, 243 N.C. 1, 6, 89 S.E. 2d 765.

Where, as here, there is a lappage, the pertinent rules for determining the relative rights of the parties are well established. The subject is fully discussed in Currie v. Gilchrist, 147 N.C. 648, 61 S.E. 581, where Walker, J., after reviewing prior decisions, said: “We may therefore take it to be settled by this Court by a long and unvarying line of decisions that if the person who claims under the elder title have no actual possession on the lappage, such possession, although of a part only, by him who has the junior title, if adverse and continued for seven years, will confer a valid title for the whole of the interference, the title being out of the State.” Also, see Vance v. Guy, 224 N.C. 607, 611, 31 S.E. 2d 766; Berry v. Coppersmith, 212 N.C. 50, 193 S.E. 3; Whiteheart v. Grubbs, 232 N.C. 236, 60 S.E. 2d 101.

The evidence, considered in the light most favorable to defendants, tends to show they have had actual adverse possession (see Berry v. Coppersmith, supra, and cases cited therein) of the 20-foot strip for more than twenty years and that neither A. C. Lane nor plaintiff has had actual possession of any part thereof. It is noteworthy that defendants’ evidence tends to show their adverse possession extended to a fence and ditch south of the line Y to X but north of the line E to F.

Where, in a special proceeding under G.S. 38-1 et seq., to establish a boundary line, the defendant, by his answer, denies the petitioner’s title and, as a defense, pleads seven years’ adverse possession under color of title under G.S. 1-38, or twenty years’ adverse possession under G.S. 1-40, the proceeding is assimilated to an action to quiet title. In such case, as provided by G.S. 1-399, the clerk “shall transfer the cause to the civil issue docket for trial during term upon all issues raised by the pleadings.” See Simmons v. Lee, 230 N.C. 216, 222, 53 S.E. 2d 79, and cases cited.

In the trial below, the court held and instructed the jury, “that title is not involved because the answer of the defendant or respondents admits that the lands of the petitioner adjoin their land, particularly on the Northern boundary of petitioner’s land . . .” Too, while instructions were given as to adverse possession, the court instructed the jury that the evidence of defendants as to their adverse possession was “to be received and considered by you not as establishing title to any of the disputed area, but only to assist you in arriving at the true dividing line between the parties.” Defendants excepted to each of these instructions.

Ordinarily, in a special proceeding under G.S. 38-1 et seq., where it is admitted that the lands of petitioner and respondent adjoin, the only question presented is the location of the true dividing line. It was so held in Plemmons v. Cutshall, 234 N.C. 506, 67 S.E. 2d 501, cited by the court below as the basis for its ruling. But, for the reasons stated below, the factual situation here considered differs from that ordinarily involved in such cases.

The crucial question is whether the pleadings raised an issue as to plaintiff’s alleged title to the 20-foot strip. The court below, by the instructions defendants assign as error, answered, “No.” After careful consideration, we are of opinion, and so hold, that the court’s ruling in this respect was erroneous.

Here, defendants do not contend the lines A to B to C to D to A were not located and shown on the court map in accordance with the calls in the two deeds to A. C. Lane. They admit their southern boundary is plaintiff’s northern boundary. But this is so whether the true dividing line is the northern boundary of the 20-foot strip or the southern boundary thereof. Thus, the answer to the question, where is the true dividing line, a factual issue, depends upon the answer to the legal question, what is the true dividing line; and what is the true dividing line depends upon whether plaintiff or defendants own the 20-foot strip. Hence, the real controversy relates to the ownership of the 20-foot strip.

True, defendants contended, originally, the northern line of the Henry Copeland tract and the southern line of the 20-foot strip was the line E to F, a line south of the line Y to X. There was evidence that this line was shown on the Jessup map as the northern line of the “Henry Copeland Thicket Tract.” Defendants’ original contention as to the location of the northern line of the Henry Copeland tract was based on the Jessup map. Plaintiff testified: “We had the Jessup survey map made . . . We did not agree to nothing that is on there.” The Jessup map is not before us. Suffice to say, nothing appears to indicate plaintiff is bound thereby. E to F was not a marked line prior to the Jessup survey. The court surveyor testified that, according to the descriptions in the two deeds to A. C. Lane, the line shown on the map as Y to X is the northern line of the Henry Copeland tract and the southern line of the 20-foot strip. Defendants abandoned their original contention, thereafter contending the line Y to X, namely, the northern line of the Henry Copeland tract, was their southern boundary.

The significance of the allegations in the answer becomes clear in the light of the factual situation disclosed by the evidence. Defendants, in their answer, specifically denied that plaintiff owned “a tract of land having in its entirety the description” set out in paragraph 1 of the complaint. They alleged they owned the Thompson Boyce tract. They asserted their adverse possession of the 20-foot strip for more than twenty years. Considered in the light most favorable to them, we are of opinion, and so decide, that the gist of defendants’ allegations was this: They admitted plaintiff’s ownership of the tract conveyed to A. C. Lane by Henry Copeland. With this exception, they denied plaintiff’s ownership of the land included in the description set forth in paragraph 1 of the complaint. They asserted title to the entire original Thompson Boyce tract, alleging title to the 20-foot strip, originally a part thereof, by adverse possession for more than twenty years. Hence, the answer of defendants is deemed sufficient to raise an issue as to the title to the disputed 20-foot strip. This being so, an issue as to the title to the 20-foot strip should have been submitted.

G.S. 8-39 provides: “In all actions for the possession of or title to any real estate parol testimony may be introduced to identify the land sued for, and fit it to the description contained in the paper-writing offered as evidence of title or of the right of possession, and if from this evidence the jury is satisfied that the land in question is the identical land intended to be conveyed by the parties to such paper-writing, then such paper-writing shall be deemed and taken to be sufficient in law to pass such title to or interest in such land as it purports to pass: Provided, that such paper-writing is in all other respects sufficient to pass such title or interest.”

In view of our conclusion that an issue of title as to the 20-foot strip is raised by the pleadings, it is incumbent upon plaintiff to establish that he acquired the title of A. C. Lane, if any, to the 20-foot strip, originally a part of the Thompson Boyce tract, under the devise to him by A. C. Lane of the “Henry Copeland Pine Thicket.” The court below having ruled that no question of title was involved, there appeared to be no need for evidence tending to identify the “Henry Copeland Pine Thicket.” Plaintiff is entitled to an opportunity to offer evidence as to the identity of the “Henry Copeland Pine Thicket” as of the time A. C. Lane executed his will. See Trust Co. v. Wolfe, 243 N.C. 469, 91 S.E. 2d 246, and cases cited.

The foregoing leads to these conclusions: (1) The judgment of the court below is vacated. (2) The answer to the second issue, establishing the location of plaintiff’s southern boundary, and the answer to the third issue to the extent it establishes the true dividing line between plaintiff’s land and the land of Jesse E. Chappell, stand; and these will be implemented when final judgment is entered. (3) The first issue, and the third issue to the extent it purports to establish X to C as the true dividing line between plaintiff’s land and the land of Jesse E. Chappell, are set aside. A new trial, as between plaintiff and defendants Lane, for determination of title to the 20-foot strip, is awarded.

New trial.