Willis v. Mann

386 S.E.2d 68, 96 N.C. App. 450, 1989 N.C. App. LEXIS 1020
CourtCourt of Appeals of North Carolina
DecidedDecember 5, 1989
DocketNo. 883SC1331
StatusPublished
Cited by1 cases

This text of 386 S.E.2d 68 (Willis v. Mann) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Willis v. Mann, 386 S.E.2d 68, 96 N.C. App. 450, 1989 N.C. App. LEXIS 1020 (N.C. Ct. App. 1989).

Opinion

BECTON, Judge.

Plaintiffs instituted this action to quiet title to certain land in Carteret County. Following a bench trial, the judge entered judgment in favor of defendants, finding they had adversely possessed the property under color of title for seven years. Plaintiffs appeal, and we affirm.

I

On 28 February 1739, 320 acres of land in Carteret County were conveyed to John Jarrett. The property was partitioned [452]*452into four tracts in 1857; the first three of these are the subject of the present dispute. The tracts run, essentially, east and west and will be designated “the tracts” in this opinion. In 1963, defendants exchanged deeds, dividing much of the property into three lots. Defendants recorded their deeds in 1964. The lots run north and south and will be called “the lots” herein. The intersecting points of the tracts and the lots have created nine overlapping areas.

In 1969, plaintiffs’ predecessor in title filed a Torrens action, claiming title as sole owner to the three tracts. In 1981, plaintiffs took a voluntary dismissal, without prejudice, of the action and did not bring a new action within one year. Plaintiffs filed the present action in 1985.

At trial, plaintiffs introduced evidence of common ancestry in title between plaintiffs and defendants. The judge found that plaintiffs had connected themselves to the 1739 grant and found plaintiffs to be owners of the three tracts created by the 1857 partition. Additionally, the judge found that, beginning in 1963, defendants went into possession of the property delineated in their deeds and 1) marked boundaries, 2) subdivided lot 3 on two occasions, 3) rechopped old lines, 4) placed a mobile home on lot 3, resurveyed the lot, and chopped certain lines, 5) prevented plaintiff Willie Guy Willis and his predecessor in title from cutting timber on the property, 6) established corners and placed markers on their individual property lines and, on two occasions, strung wire along their boundaries, 7) paid taxes on the property, and 8) defended the Torrens proceeding instituted by plaintiffs’ predecessor in title. The judge concluded that, although plaintiffs had properly surveyed and located their property and had established a superior chain of title, defendants had ripened an adverse claim to their lots under seven years’ color of title, N.C. Gen. Stat. Sec. 1-38 (1983). The judge “specifically rejected] any claim of adverse possession by Defendants pursuant to the twenty year adverse possession statute [N.C. Gen. Stat. Sec. 1-40 (1983)].” Plaintiffs appealed.

II

This litigation has yielded a voluminous record and issues involving tenancy in common, lappage, possessory acts, statutes of limitation, and evidentiary matters. In our view, however, resolution of this case turns upon whether the judge properly ruled that defendants acquired exclusive rights to the land on the basis [453]*453of adverse possession under color of title. We hold that the judge correctly found that they did.

A

Plaintiffs first assign error to the judge’s application of a color-of-title theory to defendants’ possession of the land encompassed by tract two. Plaintiffs contend that their evidence established a tenancy in common among plaintiffs and defendants as to that tract, and that the judge should have applied the twenty-year possessory period as a result. We disagree.

The judge’s findings are equivocal as to whether he believed plaintiffs and defendants were tenants in common as to tract two. Plaintiffs presented the testimony of a genealogist tending to show that when the land was partitioned in 1857, the owners of tract two were the common ancestors to all parties. The judge’s findings as to the ownership of tract two, moreover, suggest he found a tenancy in common with respect to that land. We will assume, therefore, that a tenancy in common existed with regard to that property.

There is, in this case, no evidence and no claim by plaintiffs that defendants exchanged their deeds in bad faith. Cf. State v. Taylor, 60 N.C. App. 673, 678, 300 S.E.2d 42, 46, disc. rev. denied and appeal dismissed, 308 N.C. 547, 303 S.E.2d 823 (1983) (defendants were aware, when they exchanged deeds, that neither had title to deeded property). Defendants’ deeds, therefore, were color of title.

Between tenants in common, possession by one tenant for a period of less than twenty years cannot be adverse to the others, as the possession of one tenant in common is, in law, the possession of all of them. See McCann v. Travis, 63 N.C. App. 447, 451, 305 S.E.2d 197, 200 (1983) (quoting Young v. Young, 43 N.C. App. 419, 427, 259 S.E.2d 348, 352 (1979)); Morehead v. Harris, 262 N.C. 330, 343, 137 S.E.2d 174, 186 (1964). A tenant in common has the right to possession of the property and is presumed to hold under true title. Young, 43 N.C. App. at 427, 259 S.E.2d at 352 (citing Winstead v. Woolard, 223 N.C. 814, 28 S.E.2d 507 (1944)). The twenty-year period does not apply, however, when one tenant in common ousts another. See Morehead, 262 N.C. at 343, 137 S.E.2d at 186; Dobbins v. Dobbins, 141 N.C. 210, 214, 53 S.E. 870, 871 (1906); accord McCann, 63 N.C. App. at 452, 305 S.E.2d at 200. [454]*454The issue before us, then, is whether, as defendants assert, plaintiffs were at any time ousted from possession of tract two.

Actual ouster involves “an entry or possession of one tenant in common that enables a cotenant to bring ejectment against him.” McCann, 63 N.C. App. at 452, 305 S.E.2d at 200. The entry or possession must be a clear, positive, and unequivocal act equivalent to an open denial of [the cotenant’s] right and to putting him out of the seizin. Id. (quoting Dobbins, 141 N.C. at 214, 53 S.E. at 871). Related to the doctrine of actual ouster is that of presumptive ouster, whereby the law, following a tenant’s uninterrupted exclusive possession of the land for twenty years, will presume an ouster at the beginning of the statutory period. See Page v. Branch, 97 N.C. 97, 102, 1 S.E. 625, 628 (1887). Because the judge found that defendants’ acts of possession from 1963 onward were not sufficient to establish adverse possession under the twenty-year statute, the doctrine of presumptive ouster cannot apply. Of necessity, the judge would have to have found that an actual ouster by defendants occurred, or else, as plaintiffs properly contend, the judgment, as regards tract two, cannot stand.

Adequate evidence exists in this case to support a finding of an actual ouster of plaintiffs. The judge did not explicitly address the question of ouster; his failure to do so, however, is not fatal to the judgment. Cf. Reese v. Carson, 3 N.C. App. 99, 104, 164 S.E.2d 99, 102 (1968) (if correct result reached by trial judge, judgment should not be disturbed on appeal even if some reasons assigned for judgment not correct).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Beck v. Beck
481 S.E.2d 317 (Court of Appeals of North Carolina, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
386 S.E.2d 68, 96 N.C. App. 450, 1989 N.C. App. LEXIS 1020, Counsel Stack Legal Research, https://law.counselstack.com/opinion/willis-v-mann-ncctapp-1989.