Newkirk v. Porter

Annotate this Case

74 S.E.2d 235 (1953)

237 N.C. 115

NEWKIRK v. PORTER et al.

No. 599.

Supreme Court of North Carolina.

January 30, 1953.

*237 Rountree & Rountree, Wilmington, and Wyatt E. Blake, Burgaw, for plaintiff-appellant.

*238 Moore & Corbett, Burgaw, for defendants-appellees.

JOHNSON, Justice.

The single question presented by this appeal is whether the plaintiff made out a prima facie case of title by adverse possession to the disputed strip of land.

In this jurisdiction title to land may be acquired by the requisite acts of adverse possession (1) under color of title for a period of 7 years, G.S. § 1-38, or (2) under claim of right, without color of title, for a period of 20 years, G.S. § 1-40. See 1 Am. Jur., Adverse Possession, Section 185.

In either case, in order to bar the true owner of land from recovering it from an occupant in adverse possession, the possession relied on must have been actual, open, visible, notorious, continuous, and hostile to the true owner's title and to all persons for the full statutory period. Locklear v. Savage, 159 N.C. 236, 74 S.E. 347. See also these cases in which the elements of title by adverse possession are specifically treated: Price v. Whisnant, 236 N.C. 381, 72 S.E.2d 851; Williams v. Robertson, 235 N.C. 478, 70 S.E.2d 692; Battle v. Battle, 235 N.C. 499, 70 S.E.2d 492; Locklear v. Oxendine, 233 N.C. 710, 65 S.E.2d 673; Gibson v. Dudley, 233 N.C. 255, 63 S.E.2d 630; Wallin v. Rice, 232 N.C. 371, 61 S.E.2d 82; Ramsey v. Nebel, 226 N.C. 590, 39 S.E.2d 616; Alexander v. Richmond Cedar Works, 177 N.C. 137, 98 S.E. 312; May v. Mfg. & Trading Co., 164 N.C. 262, 80 S.E. 380.

Continuity of possession being one of the essential elements of adverse possession, in order that title may be ripened thereby, such possession must be shown to have been continuous and uninterrupted for the full statutory period. Perry v. Alford, 225 N.C. 146, 33 S.E.2d 665; Ward v. Herrin, 49 N.C. 23; Holdfast v. Shepard, 28 N.C. 361; 1 Am.Jur., Adverse Possession, Sec. 148. This for the reason that if the possession of the adverse claimant be broken, the constructive possession of the true owner intervenes and destroys the effectiveness of the prior possession. Hayes v. Williamson-Brown Lumber Co., 180 N.C. 252, 104 S.E. 527; Williams v. Wallace, 78 N.C. 354; Malloy v. Bruden, 86 N.C. 251.

However, in order to fulfil the requirements as to continuity of possession, it is not necessary that an adverse possession be maintained for the entire statutory period by one person. Continuity may be shown by the tacking of successive possessions of two or more persons between whom the requisite privity exists. 1 Am.Jur., Adverse Possession, Sec. 151. And, as stated by Hoke, J., in Vanderbilt v. Chapman, 172 N.C. 809, 812, 90 S.E. 993, 994, L.R.A. 1917C, 143, "The privity referred to is only that of possession, and may be said to exist whenever one holds the property under or for another or in subordination to his claim and under an agreement or arrangement recognized as valid between themselves." See also Johnston v. Case, 131 N.C. 491, 42 S.E. 957; Mordecai's Law Lectures, Second Ed., p. 688; Annotation 17 A.L.R.2d 1128.

Accordingly, a grantee claiming land within the boundaries called for in the deed or other instrument constituting color of title, may tack his grantor's possession of such land to that of his own for the purpose of establishing adverse possession for the requisite statutory period. Vanderbilt v. Chapman, supra.

Similarly, the adverse possession of an ancestor may be cast by descent upon his heirs and tacked to their possession for the purpose of showing title by adverse possession. Vanderbilt v. Chapman, supra; Barrett v. Brewer, 153 N.C. 547, 69 S.E. 614, 42 L.R.A.,N.S., 403; Mordecai's Law Lectures, Second Ed., p. 688. See also Jacobs v. Williams, 173 N.C. 276, 91 S.E. 951; Blue Ridge Land Company v. Floyd, 167 N.C. 686, 83 S.E. 687; 1 Am.Jur., Adverse Possession, Sec. 153.

But the rule with us is that a deed does not of itself create privity between the grantor and the grantee as to land not described in the deed but occupied by the grantor in connection therewith, and this is so even though the grantee enters into possession of the land not described and uses it in connection with that conveyed. Boyce v. White, 227 N.C. 640, 44 S.E.2d 49; Blackstock v. Cole, 51 N.C. 560. See also *239 Simmons v. Lee, 230 N.C. 216, 53 S.E.2d 79; Ramsey v. Ramsey, 229 N.C. 270, 49 S.E.2d 476; 1 Am.Jur., Adverse Possession, Sec. 156; Annotation 17 A.L.R.2d 1128. Nothing else appearing, the mere noninclusion of the disputed area in the description raises the inference that the grantee claimed it independently and began a holding which was adverse to the grantor as well as to other persons. Blackstock v. Cole, supra.

Also, where the calls for location of boundaries to land are inconsistent, the general rule is that natural objects and artificial monuments control courses and distances. Nash v. Wilmington and W. R. Co., 67 N.C. 413, 418. And in this connection, another's line called for, if known and established, is usually treated as a monument. Jennings v. White, 139 N.C. 23, 51 S.E. 799; Mordecai's Law Lectures, Second Ed., p. 814; 8 Am.Jur., Boundaries, Sections 4, 51, and 56.

In the case at hand it is observed that the defendants have the senior record title, and that the plaintiff's deed calls for the defendants' northern boundary as the dividing line between the two tracts. Also, the defendants' evidence tends to give their northern boundary a fixed location on the ground at about where they contend it is located.

The situation presented by these factors no doubt prompted the plaintiff to concede in the court below, and stipulate in brief on appeal, that his claim of ownership of the disputed area is based on adverse possession. This concession in the light of the circumstances under which it was made would seem to support the conclusion that the plaintiff intended thereby to concede that the disputed area is not covered by the description appearing in his deed, and that he intended to claim title thereto by adverse possession based on the theory that he and his predecessors in title, including his father, have occupied the undescribed disputed area in connection with the land actually described in the paper title for more than 20 years.

As to this, however, nothing else having been made to appear, the transfers sub silento made by W. T. Wallace, trustee, to Carter & Brice, and by the latter to the plaintiff, appear to be insufficient on the record as presented to permit the tacking of the possession of the plaintiff's father to that of his own with respect to the undescribed disputed area, Blackstock v. Cole, supra; Annotation 17 A.L.R.2d 1128, p. 1160, and particularly is this so in view of the fact that the plaintiff's record title to the 101.7-acre tract as offered in evidence shows no conveyance from the plaintiff's father, J. M. Newkirk, to W. T. Wallace, trustee. Thus, in view of this hiatus, the plaintiff's paper title, for present practical purposes, has its inception in the deed of W. T. Wallace to Carter and Brice dated December 3, 1942. See Meeker v. Wheeler, 236 N.C. 172, 72 S.E.2d 214.

Also, it is further noted that the record discloses no evidence tending to show that Carter and Brice exercised any acts of possession during the period of their claimed ownership, which lasted about a year.

It follows, then, that by reason of these hiatuses the plaintiff failed to show continuity of possession for the requisite period of 20 years. Ward v. Herrin, supra.

Moreover, since these hiatuses appear within 7 years next preceding the date of the commencement of the action, it also follows that if it should be conceded arguendo that the plaintiff's paper title, when considered on the prima facie level, is sufficient to support the inference that it embraces the disputed area and constitutes color of title, even so, the plaintiff failed to show the requisite continuity of possession necessary to ripen title under colorable claim.

Nor was the plaintiff entitled to go to the jury on the theory that his father acquired title to the disputed area by adverse possession prior to his death, Brite v. Lynch, 235 N.C. 182, 69 S.E.2d 169, and that the ripened title thereto passed to the plaintiff under the successive deeds appearing in his paper title. It is enough to say that the hiatus in the plaintiff's paper title defeats recovery on this theory. Meeker v. Wheeler, supra. Besides, neither the pleadings nor the theory of the trial below encompass this theory. Nor does the record disclose when the plaintiff's father died. *240 Thus the record leaves indefinite and without fixed period of duration the time during which it may be inferred from plaintiff's evidence that his father exercised acts of possession within the disputed area.

Nor does the record justify retaining the cause for trial on the theory of a processioning proceeding under G.S. § 38-1 et seq. The case was both cast by the pleadings and tried below on the other theory. The theory of the trial prevails on appeal. General Finance & Thrift Corp. v. Guthrie, 227 N.C. 431, 42 S.E.2d 601; Hinson v. Shugart, 224 N.C. 207, 29 S.E.2d 694.

In this state of the record, we do not reach for decision the question whether the character of the acts of ownership and possession relied on by the plaintiff meet minimum requirements necessary to ripen title by adverse possession, either as to the whole of the disputed area or the portions which appear to be cleared and under cultivation and on which permanent structures have been erected. See Ramsey v. Nebel, supra; Wallin v. Rice, supra.

We observe in passing that counsel who appeared for the plaintiff in this Court were not his original counsel and hence are not responsible for the theory of the case as originally cast below.

On the record as presented the evidence was insufficient to show title by adverse possession to the disputed area. The judgment below is

Affirmed.

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