Burns v. Crump

95 S.E.2d 906 (1957)

245 N.C. 360

D. R. BURNS v. Lawrence CRUMP and wife, Ruby Crump.

No. 313.

Supreme Court of North Carolina.

January 11, 1957.

*908 L. H. Wall, Hal B. Adams, Lenoir, for plaintiff.

Townsend & Todd, Lenoir, for defendants.

DENNY, Justice.

The plaintiff sets out in his case on appeal 38 assignments of error. We shall not undertake a seriatim discussion of them. In our opinion, the appeal may be disposed of by a consideration of only one of these assignments of error.

Assignment of error No. 24 is based on an exception to the following portion of the charge: "These defendants contend that the condition of their land discloses that error has been made in the description of boundaries and in the survey; that in truth and in fact the boundaries of their land go to a large rock on the East bank of Gragg's Fork or Prong of Johns River, to a large rock testified to, they contend, by numerous witnesses as being the corner of a tract of land that they contend they hold under color of title, and the Supreme Court says that color of title is defined as a paper writing (usually a deed) which professes and appears to pass the title, but fails to do so."

When the above instruction is considered in light of the contentions recited therein, coupled with the statement that "the Supreme *909 Court says that color of title is defined as a paper writing (usually a deed) which professes and appears to pass the title, but fails to do so," we think it is susceptible to the construction that although the description in the deed does not include the disputed area, it may be considered as color of title thereto.

A deed which is color of title is such only for the land designated and described therein. Locklear v. Oxendine, 233 N.C. 710, 65 S.E.2d 673; Williams v. Robertson, 235 N.C. 478, 70 S.E.2d 692. Hence, the law with respect to color of title is not applicable to lands not embraced in the description in such deed.

A statement of contentions which presents an erroneous view of the law applicable to the case, constitutes prejudicial error. State v. Grayson, 239 N.C. 453, 80 S.E.2d 387, and cited cases. This assignment of error will be upheld.

Ordinarily, we do not undertake to chart the course of a new trial. In the instant case, however, we think it is well to note that the plaintiff objected to and assigns as error the admission of certain testimony by Lawrence Crump to the effect that he bought the 45-acre tract of land from J. P. Gragg in June 1944 (as a matter of fact, he did not buy the land from J. P. Gragg but from Effie Sims), and that Gragg showed him where the corners were. The witness was permitted to testify with respect to the location of lines and corners which he contended should have been included in his deed and which would have embraced the land in dispute. Most of the lines and corners about which this defendant testified were not referred to in the deed to defendants; in fact, the description in the defendants' deed, according to the court survey thereof, appears to be a complete and accurate description of the 45 acres of land purported to be conveyed therein.

This evidence would have been admissible on the question of adverse possession if the defendants were in a position to tack the possession of their predecessors in title to their own claim of adverse possession. The evidence on this record tends to show that they have no such right. However, the case appears to have been submitted to the jury on the theory of tacking the adverse possession of predecessors in title without objection by the plaintiff.

There is no evidence which tends to show that Effie Sims ever claimed title to any land from 8 June 1938 until she conveyed the 45-acre tract of land to the defendants on 1 June 1944, except that described in her deed. Moreover, J. P. Gragg, under our decisions, retained no right, title or interest in the 45-acre tract of land he conveyed to Effie Sims on 8 June 1938, since the manner in which he attempted to retain a life interest in the land conveyed was ineffective. Artis v. Artis, 228 N.C. 754, 47 S.E.2d 228; Pilley v. Smith, 230 N.C. 62, 51 S.E.2d 923; Johnson v. Barham, 232 N.C. 508, 61 S.E.2d 374; Jeffries v. Parker, 236 N.C. 756, 73 S.E.2d 783. Therefore, on 1 June 1944, when J. P. Gragg joined with Effie Sims, widow, in the deed conveying the 45-acre tract of land to the defendants, he had no interest in the land conveyed.

A grantee in a deed is not entitled to tack the adverse possession of his predecessors in title as to a parcel of land not contained within the description in his deed, unless privity exists between the parties. No privity exists, under our decisions, between the defendants and their predecessors in title as to the disputed area on the facts disclosed by the record on this appeal. Boyce v. White, 227 N.C. 640, 44 S.E.2d 49; Ramsey v. Ramsey, 229 N.C. 270, 49 S.E.2d 476; Simmons v. Lee, 230 N.C. 216, 53 S.E.2d 79; Locklear v. Oxendine, supra; Newkirk v. Porter, 237 N.C. 115, 74 S.E.2d 235. Our decisions in this respect are in accord with the view expressed in 1 Am.Jur., pp. 880-882, and cited with approval in Boyce v. White, supra: "Several successive possessions cannot be *910 tacked for the purpose of showing a continuous adverse possession where there is no privity of estate or connection of title between the several occupants * * * Privity, therefore, is essential. * * *. 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, although the grantee enters into possession of the land not described and uses it in connection with that conveyed."

Several other assignments of error are not without merit. However, since there must be a new trial, and the errors pointed out may not recur on another hearing, we deem it unnecessary to discuss them.

New trial.

JOHNSON, J., not sitting.