Napoli v. Philbrick

173 S.E.2d 574 (1970)

8 N.C. App. 9

D. J. NAPOLI v. W. L. PHILBRICK and wife, Christine J. Philbrick.

No. 7029SC89.

Court of Appeals of North Carolina.

May 6, 1970.

*575 Van Winkle, Buck, Wall, Starnes & Hyde by Herbert L. Hyde, Asheville, for plaintiff appellant.

Redden, Redden & Redden by Monroe M. Redden, Hendersonville, for defendant appellees.

GRAHAM, Judge.

Since the parties agreed that the only matter in controversy was the true divisional line between the two contiguous parcels of land, this action, in effect, became a processioning proceeding. Harrill v. Taylor, 247 N.C. 748, 102 S.E.2d 223; Welborn v. Bate Lumber Co., 238 N.C. 238, 77 S.E.2d 612; Goodwin v. Greene, 237 N.C. 244, 74 S.E.2d 630; Clegg v. Canady, 217 N.C. 433, 8 S.E.2d 246. It was therefore the duty of the judge to determine what constitutes the divisional line, and also as the trier of the facts, to say where it is. Coley v. Telephone Co., 267 N.C. 701, 149 S.E.2d 14; Jenkins v. Trantham, 244 N.C. 422, 94 S.E.2d 311; McCanless v. Ballard, 222 N.C. 701, 24 S.E.2d 525.

Plaintiff contends the trial judge erred in his findings relating to the description of the property owned by defendants in that two calls in the said description differ from the same two calls in the description which appears in defendants' deed. It is uncontroverted that the strip of land in controversy is encompassed within the description of the property found by the court to be owned by the defendants. It therefore follows that unless the court erred in making this finding, the judgment entered correctly located the divisional line as the line contended by defendants.

Nowhere in the record does it appear that either defendants' or plaintiff's deed was offered *576 in evidence or that there was any evidence, other than that appearing in the stipulations, to show the description of the property owned by the parties. In fact, plaintiff concedes in his brief that the only evidence before the court was the stipulated facts. The stipulations provide in part:

"That the lands claimed * * * by the defendants are described in paragraph 1 of the Further Answer and Defense and Cross Action of defendants' Answer and the court may refer to the calls therein for such information as may be appropriate, * * * Further, it is agreed that the defendants acquired title to the property claimed by them [in their Further Answer and Defense and Cross Action] in a deed dated 14 September 1956 * * * recorded 17 December 1956. * * *"

In finding that defendants own the property described in their Further Answer and Defense and Cross Action and reciting the exact description contained therein, the court in effect adopted the stipulated facts set forth above. The stipulations support the court's finding. Since, also according to stipulated facts, the property claimed by plaintiff was conveyed to him in a deed that was recorded subsequent to the recordation of defendants' deed, the court correctly relied upon the description of the property found to be owned by defendants. "A description contained in a junior conveyance cannot be used to locate the lines called for in a prior conveyance." Carney v. Edwards, 256 N.C. 20, 25, 122 S.E.2d 786, 789.

It may be that plaintiff inadvertently stipulated to facts that in effect concede that defendants own, through a senior conveyance, the exact property they claim. However, plaintiff has made no effort to seek relief from the stipulations. In Norfolk Southern R. R. Co. v. Horton, 3 N.C. App. 383, 389, 165 S.E.2d 6, 10, we find the following:

"`A party to a stipulation who desires to have it set aside should seek to do so by some direct proceeding, and, ordinarily, such relief may or should be sought by a motion to set aside the stipulation in the court in which the action is pending, on notice to the opposite party.' 83 C.J.S., Stipulations § 36, p. 93. `Application to set aside a stipulation must be seasonably made; delay in asking for relief may defeat the right thereto." 83 C.J.S. Stipulations § 36, p. 94."

The burden of proof rested on plaintiff to establish the true location of the disputed boundary line. Coley v. Telephone Co., supra; Plemmons v. Cutshall, 234 N.C. 506, 67 S.E.2d 501. "`If the plaintiffs are unable to show by the greater weight of evidence the location of the true dividing line at a point more favorable to them than the line as contended by the defendants, the jury should answer the issue in accord with the contentions of the defendants.'" Coley v. Telephone Co., supra, 267 N.C. at p. 702, 149 S.E.2d at p. 15, quoting from Cornelison v. Hammond, 225 N.C. 535, 35 S.E.2d 633, and cases cited. The record before us indicates that plaintiff failed to carry the burden of proof placed upon him and the findings, conclusions and judgment of the trial court are in all respects proper.

Affirmed.

BROCK and BRITT, JJ., concur.