Virginia-Carolina Power Co. v. Taylor , 188 N.C. 351 ( 1924 )

Connor, J.

The controversy between the parties to this action involves the title to a parcel or tract of land in Northampton County over which the Roanoke River, a nonnavigable stream, flows, the said land lying and being in the bed of said river.

The plaintiff offered evidence which he contends established a connected chain of title beginning with a grant by the State of North Carolina in 1790 and continued to the deed of its grantor. As one of the links in such chain of title he offered the record of a special proceeding for partition in the Court of Pleas and Quarter Sessions of Northampton County begun at the June Term, 1847 and concluded at the September Term, 1847, of said court. His Honor was of the opinion and so instructed tbe jury, that tbe said proceeding was not valid as a link in tbe chain of title for tbe reason tbat tbe report of tbe commissioners bad not been confirmed.

This proceeding was conducted in accordance with tbe provisions of chapter 85 of tbe Revised Statutes of North Carolina 1837. Section 1 of said chapter, after providing for tbe appointment of tbe commissioners to make tbe partition in accordance with tbe prayer of tbe petition, provides further: “Tbe said commissioners, or a majority of them, are required as soon as they can to make a return of their proceeding and appropriations under their bands and seals, ascertaining with precision tbe different tracts or parcels of land, lots or bouses with actual surveys of tbe same when necessary, to tbe court by which they were appointed, which return and appropriation shall be certified by tbe clerk and enrolled in bis office and registered in tbe office of tbe county where such lands, lots or bouses respectively lie; and such return and appropriation shall be binding and valid among and between tbe claimants, their heirs and assigns forever.”

This statute which was applicable to the proceeding bad in 1847, was not called to tbe attention of bis Honor; we are of tbe opinion that bis Honor was in error in bolding tbat tbe said proceeding was not valid for tbe reason tbat there was no formal order or decree confirming tbe report of tbe commissioners.

An inspection of tbe proceeding shows tbat the report of tbe commissioners appointed in this proceeding was returned into open court, and tbat tbe said return, together with tbe plat annexed, was certified by tbe clerk and enrolled in accordance with tbe provisions of tbe statute then in force. By virtue of such statute, such return and appropriation when so certified and registered, became “binding and valid among and between tbe petitioners, their heirs and assigns forever.”

It is interesting to note tbat this section 1 of chapter 85, as tbe same appears in tbe Revised Code of North Carolina 1854, was amended by requiring tbat tbe report of tbe commissioners should be confirmed and then enrolled and certified in accordance with tbe provisions of tbe foregoing section. See C. S., 3230, 1.

Tbe plaintiff’s assignment of error for tbat bis Honor held tbat tbe report of tbe commissioners bad not been confirmed and tbat therefore tbe proceeding was not valid as a link in plaintiff’s chain of title, is sustained and therefore there must be a

New trial.