Plemmons v. Cutshall

67 S.E.2d 501 (1951)

234 N.C. 506

PLEMMONS et al. v. CUTSHALL et al.

No. 111.

Supreme Court of North Carolina.

November 21, 1951.

*504 George M. Pritchard, Asheville, Calvin R. Edney, Marshall, for petitioners appellees.

Carl R. Stuart, Marshall, for respondents appellants.

WINBORNE, Justice.

It is apparent from the record and statement of case on this appeal that in the trial court there was a misconception on all hands as to the issues raised by the pleadings.

A reading of the petition reveals the express purpose of the proceeding to be the establishment of boundary lines between lands of petitioners and lands of respondents. Chapter 38 of General Statutes of North Carolina. Petitioners allege that they are the owners of a tract of land whose boundaries are the boundaries of lands they allege are owned by respondents.

Also a perusal of the answers shows that respondents admit that petitioners own land adjoining the land they, the respondents, expressly aver they own, and of which they have had adverse possession for more than seven years under color of title,yea, more than twenty years under known and visible lines and boundaries.

Thus no issue of title is raised,either as to the lands of petitioners, or as to the lands of respondents. So, after all the underbrush is cleared away, the pleadings raise only the issue as to "What is the true dividing line between the lands of petitioners and the lands of respondents?" See Greer v. Hayes, 216 N.C. 396, 5 S.E.2d 169; Cornelison v. Hammond, 225 N.C. 535, 35 S.E.2d 633.

Hence there was error in submitting other issues.

The burden of proof on the issue as to the true location of the dividing line is upon the petitioners. This is accordant with the well settled rule enunciated in decisions of this Court, among which are these: Hill v. Dalton, 140 N.C. 9, 52 S.E. 273; Woody v. Fountain, 143 N.C. 66, 55 S.E. 425; Garris v. Harrington, 167 N.C. 86, 83 S.E. 253; Carr v. Bizzell, 192 N.C. 212, 134 S.E. 462; Greer v. Hayes, supra; Hill v. Young, 217 N.C. 114, 6 S.E.2d 830.

Also it is settled law in this State that, in a proceeding to establish a boundary line, which is in dispute, what constitutes the dividing line is a question of law for the court, but a controversy as to where the line is must be settled by the jury under correct instructions based upon competent evidence. See Clegg v. Canady, 217 N.C. 433, 8 S.E.2d 246; Huffman v. Pearson, 222 N.C. 193, 22 S.E.2d 440, and cases cited. See also Brown v. Hodges, 232 N.C. 537, 61 S.E.2d 603.

Moreover, it is noted that respondents in the case in hand aver in the original answer that the description set forth in the petition is too indefinite to describe the petitioners' land with any certainty. As to this averment, the decisions of this Court generally recognize the principle that a deed conveying land within the meaning of the statute of frauds must contain a description of the land, the subject matter of the deed, either certain in itself or capable of being reduced to certainty by reference to something extrinsic to which the deed refers. The office of description is to furnish, and is sufficient when it does furnish, means of identifying the land intended to be conveyed. The deed itself must point to the source from which evidence aliunde to make the description complete is to be sought. See North Carolina Self Help Corp. v. Brinkley, 215 N.C. 615, 2 S.E.2d 889, and cases cited.

Testing the description of petitioners' land by this principle, it appears to be sufficient to admit of such proof.

So, in the light of these principles, petitioners in present case have the burden of locating the lines and corners called for in the description of their land. And since the beginning is designated as "a Spanish oak stump, the Joshua Tweed corner", and the first call runs "a southwest direction with the Joshua Tweed line to a hemlock and oak in said line", it is encumbent upon petitioners to locate this corner and the line of the Joshua Tweed tract,the call for another's line being considered a natural *505 boundary. See Clegg v. Canady, supra. In locating such corner and line, the best evidence of the calls in the description of this tract is the record of a deed covering it. Woodbury v. Evans, 122 N.C. 779, 30 S.E. 2. Then the description therein may be fitted to the land in accordance with appropriate rules. See Locklear v. Oxendine, 233 N.C. 710, 65 S.E.2d 673, and cases cited.

In the Locklear case it is said that the general rule is that in order to locate a boundary of land, the lines should be run in the regular order from a known beginning, and the test of reversing in the progress of the survey should be resorted to only when the terminus of a call cannot be ascertained by running forward, but can be fixed with certainty by running reversely the next succeeding line.

In like manner the burden is upon the petitioners to locate the corners and line of the 50-acre Mill tract, and the line of the Mack tractcalled for in the description of their land.

When these three tracts are so properly located, the lines called for will constitute the true dividing line between the lands of petitioners and of respondents.

Thus it is clear, and we hold, that the course pursued by petitioners as appears in statement of facts hereinabove, in undertaking to develop their case on the trial below, is violative of pertinent rules of evidence, and prejudicial to respondents.

As to exceptions to refusal of the trial court to allow motions, aptly made, for judgment as of nonsuit: Where, in a processioning proceeding, the only real controversy is as to the location of the dividing line between the lands of the petitioners and of the respondents the cause should not be dismissed as in case of nonsuit.

See Cornelison v. Hammond, supra, where the subject has been fully discussed and applied in opinion by Barnhill, J. See also Brown v. Hoges, 230 N.C. 746, 55 S.E.2d 498. In lieu of such motion, request for peremptory instruction may be appropriate in a proper case.

Finally, since there must be a new trial for error pointed out, the other exceptions are not expressly treated.

New trial.

VALENTINE, J., took no part in the consideration or decision of this case.