Wilson County Board of Education v. Lamm

171 S.E.2d 48 (1969)

6 N.C. App. 656

WILSON COUNTY BOARD OF EDUCATION v. Bessie H. LAMM, Widow; Virginia Lamm Hayes and husband, J. F. Hayes; Jack F. Hayes, a Minor; Temple Ann Hayes, a Minor; Jack Thomas Hayes, a Minor; the Free Will Baptist Children's Home, Inc.; and all persons not In being who may by any contingency own or acquire any Interest in the lands constituting the subject matter of this action by reason of the Last Will and Testament of Grover T. Lamm, Deceased.

No. 697SC422.

Court of Appeals of North Carolina.

December 17, 1969.

Certiorari Allowed February 3, 1970.

*51 Connor, Lee, Connor & Reece, by Cyrus F. Lee and David M. Connor, Wilson, for plaintiff appellant.

Lucas, Rand, Rose, Meyer & Jones by Louis B. Meyer, Wilson, for defendant appellees.

BRITT, Judge.

The assignments of error brought forward and argued relate to rulings of the court admitting certain evidence and to certain aspects of the charge. This Court is governed by the "settled rule of appellate courts that verdicts and judgments will not be set aside for harmless error or for mere error and no more. To accomplish this result it must be made to appear not only that the ruling complained of was erroneous but that it was material and prejudicial, amounting to a denial of some substantial right." Herring v. McClain, 6 N.C.App. 359, 169 S.E.2d 903. Plaintiff contends there is reversible error. We think not; rather, the record indicates that plaintiff simply failed to show adverse possession to the satisfaction of the jury.

Plaintiff could acquire title by adverse possession only if the jury, under proper instructions, were satisfied that the acts of ownership described by the witnesses constituted open, notorious and adverse possession. The settled law, restated in the case of State v. Brooks, 275 N.C. 175, 166 S.E.2d 70, is that "the party asserting title by adverse possession must carry the burden of proof on that issue." The record indicates that the instructions given presented the issue fully and fairly and are in accord with the classic definition of adverse possession stated in Locklear v. Savage, 159 N.C. 236, 74 S.E. 347, and cited with approval in State v. Brooks, supra, as follows:

"It consists in actual possession, with an intent to hold solely for the possessor to the exclusion of others, and is denoted by the exercise of acts of dominion over the land, in making the ordinary use and taking the ordinary profits of which it is susceptible in its present state, such acts to be so repeated as to show that they *52 are done in the character of owner, in opposition to right or claim of any other person, and not merely as an occasional trespasser. It must be decided and notorious as the nature of the land will permit, affording unequivocal indication to all persons that he is exercising thereon the dominion of owner."

In its complaint, plaintiff conceded and the defendants admitted that plaintiff's entry into possession was with the permission of the owner ("Grover T. Lamm put plaintiff in possession of said land"), and offered no proof of the additional allegationwhich defendants deniedthat plaintiff was put into this possession "as owner." Thus, the court properly charged that where the jury believed the entry into possession was permissive, such possession does not become adverse until the "acts of dominion * * * done in the character of owner" are such as to give notice to the owner that permissive use is disclaimed. The jury verdict indicates that the plaintiff failed to satisfy them that there was an adverse possession rather than a merely permissive one.

The testimony of defendants' witness Harrison relating to the declaration of County Superintendent E. J. Barnes that "Lamm was giving the site for as long as it was a school" and "that's as long as we want it" was properly admissible over objection. Certain declarations accompanying and characterizing an act are allowed as a well-known exception to the hearsay rule. See Stansbury, N.C. Evidence 2d, § 159. The acquisition of some type of right in Lamm's realty was clearly non-verbal conduct of the sort which frequently "must be accompanied by some manifestation of purpose in order to give it any effect at all, or to determine which of two possible effects it is to have." Stansbury, N.C. Evidence 2d, § 159, p. 399.

The rule that declarations by persons in possession of land or chattels are admissible is a particular application of the abovestated principle to cases such as actions in adverse possession where "[t]he bare fact of possession is usually equivocal." Stansbury, N.C. Evidence 2d, § 160, p. 401. The case of Newberry v. Norfolk & S. R. Co., 133 N.C. 45, 45 S.E. 356, is cited for Stansbury's proposition that "[p]ossession by the declarant is of course essential to admissibility." The court held in that case that where one person claims goods by purchase of another, the declarations of the seller as to ownership of goods are not admissible under this where he was an assignor who had never at any time been in possession. The "possession by the declarant" element should not be applied with such strictness as to render the admission of Barnes' declaration unassisted by this rule, because although the school board was not in possession at that precise instant, the declaration did "accompany," "characterize" and "explain" the forthcoming entry into possession, which did, in fact, take place soon thereafter. Also, the court has indicated that the basic principle of admitting declarations accompanying and characterizing an act "cannot reasonably be restricted to the very moment of the act." Moore v. Gwyn, 26 N.C. 275.

The defendants' witnesses Peele, Simpson, Jones and Moore testified as to declarations of the titleholder Grover T. Lamm at approximately the time he put the school board into possession (Peele and Simpson) and at two separate instances while it has been in possession (Jones and Moore). A strong argument can be made that Lamm's declarations to Peele and Simpson accompany and characterize the act of putting plaintiff into possession. An equally strong argument can be made that the declarations to which Jones and Moore testified are admissible for the limited purpose of refuting the notoriety of the adverse claim which plaintiff asserts because each shows that the titleholder considered the use still permissive at the time each was made. Such an argument is founded on a logical view of the rule making declarations of the possessor admissible to show a notorious and hostile claim. The case of *53 Batts v. Staton, 123 N.C. 45, 31 S.E. 372, however, is authority for the exclusion of a declaration, made by one who put the claimant's predecessor into possession, to the effect that the entry was permissive, with the land to be used as a matter of favor and the title to remain in the declarant. The admission of such a declaration was held to be error. The case itself offers neither argument nor authority for such a position. It has not been cited as authority in subsequent North Carolina opinions.

The enunciation of a clear rule in favor of the admissibility of declarations by the titleholder, both at the time the claimant entered possession and at a subsequent time for the purpose of refuting notoriety, might be valid and desirable. However, it is only necessary at this point for this Court to observe that whatever error there may be in the admission of these declarations at bar is not material and prejudicial where the declaration of the possessor through his agent Barneswhich was properly admitted was to like effect.

There is no prejudicial error in the failure of the court to charge the jury as to Chapter 136, section 64, Session Laws of 1923 (later codified as C.S. § 5472, 1939). Plaintiff contends that the erecting and repairing of the school building were done in the character of full owner and, therefore, "hostile" because of the statutory provision that "[t]he county board of education shall make no contract for the erection or repair of any school building unless the site on which it is located is owned by the county board of education, and the deed for the same is properly registered and deposited with the clerk of the court." The act itself, however, provided that it was effective 15 April 1923. The plaintiff's evidence shows that the Lamm School contract was let and construction begun in 1922 and that subsequent repairs have been made not by way of letting contracts but by plaintiff's own agents. The statute indicates the intent to establish two requirements which must now be met by a county board of education before acting in the manner in which the plaintiff has acted. Although plaintiff contends it acted as owner of the site, it has never contended there was a deed properly registered and deposited or even that it was under the impression that there was one. The two elements of the statute are not separable. Violation of this statute is not evidence of adverse possession.

The trial of this action in the superior court was free from prejudicial error.

No Error.

BROCK and VAUGHN, JJ., concur.